MELVILLE & PICOT

[2017] FCCA 498

FEDERAL CIRCUIT COURT OF AUSTRALIA

MELVILLE & PICOT [2017] FCCA 498

Catchwords:
FAMILY LAW – Parenting orders sought – interim hearing – Recovery application – mental health of mother – children separated – mother ordered to return to local area – all children to reside with mother – mother to have sole occupation of former matrimonial home registered in father’s name – mother historically primary caregiver.

Legislation:

Family Law Act 1975, ss.60CC, 60CC(3), 67Q

Applicant: MS MELVILLE

Respondent: MR PICOT

File Number: AYC 19 of 2017

Judgment of: Judge Hartnett

Hearing date: 14 February 2017

Delivered at: Albury

Delivered on: 14 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Blank

Solicitors for the Applicant: Binnie & Associates Lawyers

Counsel for the Respondent: Mr Guterres

Solicitors for the Respondent: Marriott Oliver Solicitors

ORDERS UNTIL FURTHER ORDER

1. The matter be adjourned to the Albury circuit sittings of the Federal Circuit Court commencing on 26 September 2017 for final hearing.

2. The parties file and serve any further affidavit material they intend to rely upon not less than fourteen days prior to the final hearing.

3. The children W born (omitted) 2007 and X born (omitted) 2009 return to (omitted) on or before 6 March 2017.

4. The children Y born (omitted) 2001, Z born (omitted) 2002, W born (omitted) 2007 and X born (omitted) 2009 live with the mother.

5. The mother have exclusive possession of the former matrimonial home, Property A in the State of New South Wales from 6 March 2017.

6. The father spend time with the children as follows:-

   (a)each alternate weekend with the father collecting the children from school on Friday and dropping them to school on Monday morning;

   (b)each alternate Tuesday with the father collecting the children from school on Tuesday and dropping them to school on Wednesday morning;

   (c)half of the school holidays commencing 12 noon on the second Saturday of the holidays until 12 noon on the third Saturday of the holidays with handover of the children to occur at Hungry Jacks, (omitted);

   (d)by Skype, telephone or other telecommunication device at such other reasonable times as requested by the children; and

   (e)in the event that Mother’s Day falls on a weekend when the children are spending time with the father, then the children shall be returned to the mother at 5:00pm on the Saturday.

7. The requirement to comply with s.60I of the Family Law Act 1975 (Cth) is dispensed with.

8. Pursuant to s.62G(2) of the Family Law Act 1975 (Cth), the parties and the children of the relationship Y born (omitted) 2001, Z born (omitted) 2002, W born (omitted) 2007 and X born (omitted) 2009 attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.

   The family report deal with the following matters:-

   (a)any views expressed by the said children and any factors (such as the said children’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 ss60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   (c)any other matters that the family consultant considers important to the welfare or best interests of the said children.

9. The parties send copies of all of their Court documents to the family report writer within seven days of being requested to do so by the family report writer.

10. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one party.

11. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

12. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:-

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

13. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders.

D.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

AYC 19 of 2017

MS MELVILLE

Applicant

And

MR PICOT

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. These proceedings commenced by an initiating application filed by the mother on 19 January 2017.  The mother sought that the requirement to file a certificate from a registered family dispute resolution practitioner be dispensed with.  That order was made this day.  In accordance with the Federal Circuit Court Rules 2001 (Cth), a notice of risk was filed with the initiating application. In that notice of risk, the mother, in response to the question, “has the child of whom the proceedings relate been abused or is a child to whom the proceedings relate at risk of being abuse”, responded in the negative. The mother also answered the question “has there been family violence or is there a risk of family violence by a party to proceedings or any other person who is relevant to these proceedings”, in the negative. Essentially no issues of risk were identified.

2. In the initiating application the mother sought that the parties have equal share parental responsibility in respect of their four children; Y born (omitted) 2001, who is now aged 15 years; Z born (omitted) 2002, who is now aged 14 years; W born (omitted) 2007, who is now aged nine years; and X born (omitted) 2009, who is now aged seven years. The mother sought that the younger two children live with her and be permitted to remain living in (omitted) in the State of New South Wales.  The mother sought further that the two younger children of the parties spend time and communicate with their father as agreed between the parties.  The mother sought that the older children live with the father, and spend time and communicate with her as agreed between the parties. The mother sought that the parties have sole responsibility for making decisions about the day-to-day care, welfare and development of the children during the periods when the children were living with each of them.

3. The father, by response filed on 31 January 2017, sought that the parties have equal shared parental responsibility in respect of their four children; that the children live with their father and spend time with their mother as set out in Orders 6 to 8 inclusive of the response document.  Otherwise, the father sought what could be classified as orders of a usual nature, concerning notifying the other as to matters pertaining to the children’s health, schooling and general welfare.

4. The competing applications were returnable in the circuit sittings of the Court commencing 19 June 2017.

5. An application in a case was subsequently filed by the father on 31 January 2017 wherein he sought, essentially, that the matter be listed urgently. He sought that the mother who had at the time W & X in her care, forthwith return the children W and X to the father’s care and that in the event the mother failed to comply with such an order a recovery order issue in respect of the children pursuant to s.67Q of the Family Law Act 1975 (Cth) (‘the Act’). The father sought further, the proceedings be transferred to the Federal Circuit Court registry in Wollongong.

6. The notice of risk filed by the father on 31 January 2017 also answered in the negative the question as to whether there were any allegations relating to child abuse or family violence. In respect of other risk issues, the father alleged the children were at risk because the mother suffered from a mental illness that he claimed resulted in her withdrawing and shutting down.  He claimed that affected her capacity to parent.  He referred to the mother in the past not making dinner for the children or supervising the children. The father further claimed the mother had not advised him as to the location of the children and whether they had secure and suitable accommodation.

Background

1. The father was born on (omitted) 1971 and is currently 45 years of age.  The mother was born on (omitted) 1974 and she is currently 42 years of age.  The parties commenced their relationship in (omitted) 2000 and the mother moved into the father’s home at Property A in August 2000.  The parties had four children together, being the subject children described above.

2. Throughout the relationship and throughout the children’s lives, the parties and the children lived at Property A in the State of New South Wales. This real property and former matrimonial home is registered in the name of the husband.  In October 2016 the parties separated but remained living under the one roof. They physically separated on 16 January 2017.

3. During the time the parties cohabitated, the father worked as an (occupation omitted).  He would spend approximately four nights a week away from the home.  The father commenced this employment when he was approximately 20 years of age, and he continues in it, although he is now no longer (occupation omitted) having taken a local (omitted) position some 12 months ago.  This has meant that in recent times the father has been home each night.  The new job, however, requires him to leave home at or before 6.00am each morning.

4. In the father’s lengthy absences, over many years the mother solely cared for the children.  This arrangement was agreed by the parties.  The mother was the children’s primary carer, and the father was involved with the children at those times that he was home.  During the relationship, the mother has suffered from anxiety and depression.  The mother has however cared for the children and coped with her health difficulties.

5. Importantly, the parties agree the following facts:-

   a)following the birth of the party’s eldest child, the mother remained at home to look after the children and the home. She was continuously engaged in home duties;

   b)the mother has suffered from depression, including post-natal depression and has sought treatment.  She commenced taking antidepressant medication following the development of post-natal depression in or about (omitted) 2003.  The mother has seen a psychologist, Mr D, in respect of her mental health condition, and there is before the Court, tendered in evidence this day and marked “Exhibit 1”, a report from Mr D.  That report notes that the mother was referred to him by a mental health care plan on 29 October 2013.  The mother has attended appointments on a semi-regular basis from that time until her recent move out of the area in late 2016;

   c)the mother, in seeking assistance to help deal with her experiences of depression and anxiety, has repeatedly identified a major problem as being conflict in the parties’ relationship.  During the period of time of her consultation with Mr D, the mother had the full responsibility of caring for the four children in the father’s absence. Whilst not a matter for agreement between the parties, the evidence establishes that Mr D is of the opinion that the mother has done an admirable job of caring for her children and maintaining her family despite her levels of depression and the lack of support (because he was away) from the father;

   d)the maternal grandmother came regularly to visit the family home and in particular in March 2016.  She stayed for a week to 10 days at that time.  Thereafter, the father indicated to the mother that the maternal grandmother was not welcome, and he said words to the effect, “while she was here she is lucky she didn’t get a pillow held over her face”.  Following that discussion, the mother got in her car and left the home.  The father’s evidence is the mother disappeared for three days. The mother’s evidence is that she was upset by what the father had said, and so left the home.  She said, “I did not know where to go or what to do.  I drove to the (omitted), about one hour inland.  I was born there.  I slept in the car for three nights, not talking to anyone.  I went on a Saturday and then went home on Tuesday night as I had an appointment with my mental health nurse on Wednesday morning”; and

   e)the mother saw the mental health nurse on the Wednesday.  During that appointment, she had a video link with her treating psychiatrist.  An ambulance was called and she was taken to (omitted) Hospital.  She was assessed and admitted to the Sub-Acute Mental Health Unit for 30 days.  It was a voluntary admission and she could leave at any time, but stayed for 30 days.  During that time, the husband did not take time off work to care for the children.  He was assisted in their care by his father and mother.  The mother returned to the home and throughout and in the period between March 2016 and October 2016, when the parties separated under the one roof, things were strained between the parties. The mother nevertheless continued her primary care of the children.

6. On 16 January 2017, without the husband’s knowledge or consent, the mother departed the formal matrimonial home taking with her the two youngest children, W and X.  She did not tell the father she was leaving the home but she did not hide her actions preparatory to her departure and the father was aware the mother was intending some form of move. The mother did not provide any new address.  The two elder children continued to reside in the former matrimonial home with the father as they desired to continue with their schooling in an environment familiar to them. The mother accepted that expression of their wishes to her.  Prior to the mother’s move, the father had become concerned the mother might relocate outside the (omitted) area. He instructed his solicitor to send a letter to the mother to make it clear he did not consent to her relocating the children outside the (omitted) area.  A letter was sent to the mother dated 10 January 2017.  The mother received the letter but left it unopened on the kitchen table.

7. The father’s evidence as to the mother’s departure was as follows:-

   “29. On 16 January 2017 I woke up at 5.30 am and saw that W’s bed was packed up.  The Applicant has been packing boxes for the last two months.  I went to work at 6.30 am.  I went home at 9.20 am to pick up Y to take him to work at McDonalds.  When I arrived home I could see that there was a removalist van and the furniture and items were being moved into the removalist van.  The Applicant said nothing to me about this.  I took Y to his work and went back to my work.  When I got home the applicant had left with W and X.  She did not tell me where she was going and I still do not know where she is living, apart from my solicitor telling me that Ms Melville had said she had moved to live in (omitted), New South Wales.  I did not get to say goodbye to W or X.”

8. The correspondence of 10 January 2017  referred to in paragraph 12 above, relevantly included the following:-

   “We act for Mr Picot.

   Mr Picot tells us that you he separated in October 2016 but that you are still living at Property A.  This situation has become untenable.  Please take this as formal notice requiring you to vacate Property A as soon as possible, but no later than 9 February 2017.  As registered owner of the property, Mr Picot will remain living in the house and paying mortgage repayments.

   …

   When you move out of the home, our client would like the children to remain living with him and to spend regular time with you.  Would you please advise whether you agree to this arrangement prior to vacating the home?

   …

   Mr Picot has expressed concern you may be considering relocating with the children to (omitted), or outside of the (omitted) area.  Should this be correct we confirm that Mr Picot does not consent to the children relocating outside of the (omitted) area or schools being changed.  If you do relocate the children without Mr Picot’s consent, we will seek an urgent Court order for their immediate return.”

Consideration

1. The father’s evidence is that the children are all very close, and that they have good relationships with each other.  They have always lived together.  They do a lot of activities together. The mother does not dispute this. The father said in paragraph 33 of his affidavit of 24 January 2017:-

   “…I believe that W and X will be very upset to be away from their brother and sister and their father.”

2. The father’s further evidence is that he has the capacity to have all four of the children living with him and that he has a flexible work place, with flexible hours to fit in with the needs of the children.  He intends to reduce his working hours.  The father expressed concern as to the mother’s mental health functioning in his affidavit material. The father has, the Court observes, been content for the children to be cared for by their mother. He has obviously had confidence in her capacity to care for the children in his lengthy absences.

3. The evidence before the Court from Dr A contained in the affidavit affirmed 14 February 2017 is that Dr A has treated the mother since June 2015 including for mental health issues.  His evidence is that her mental health decline suffered in March 2016 has improved; that she has been compliant with her treatment plan; and that her condition has remained stable over the past five to six months.  Dr A said:-

   “5. I have no doubt whatsoever that Ms Melville has the capacity to properly care for her four children.”

4. In her affidavit material, the mother deposed to the relationship with the father being difficult, although she acknowledged the parties have had good times and that she has some good memories from their early years together. 

5. The mother’s evidence is that she had a routine with the children in the absence of the father, but on the nights when he was home, she found the environment uncomfortable, and the children’s routine was disrupted. The mother’s evidence was further that the father often yells at the child Y and spends little time with him. The mother’s evidence is that Y is not interested in the things his father would like him to be interested in and that he is an emotional child. 

6. The mother is very close to her mother, Ms C who visited them in (omitted) four to five times a year.  The father considered the maternal grandmother a disruptive influence in the house and claimed that she did not have a good relationship with the children. Ms C is before the Court on affidavit, sworn 8 February 2017.  Her evidence is that she has, over many years, helped with chores around the parties’ home and the day-to-day caring of their children.  Her evidence is further, that from the time each of the children were born she has been very close to them, and that all of them have stayed with she and her partner in (omitted) on various occasions.  These times spent were usually during school holidays.  The grandmother’s evidence is further that on her last few visits, her relationship with the child Z (who is 14 years) seemed very strained and it is her belief that the cause of that is the father’s negativity toward her.  Ms C and her partner Mr A suggested the mother move to (omitted), when it became apparent that she was required to move out of the former matrimonial home.  The maternal grandmother observed her daughter to be enjoying life in (omitted) which is the location she relocated to. She is committed to supporting the mother and children, and providing them with assistance into the future regardless of their geographical location.

1. The parties period of separation under the one roof was, in the mother’s words, extremely difficult.  Both parties agreed in Court that it was not possible for them to remain in the same home into the future.  The mother is in receipt of income of $177 a fortnight from Centrelink.  The father’s income in the last financial year was $70,815, leaving him with a net of approximately $1050 per week.  The father’s evidence is that as he is no longer an (occupation omitted) and not able to accept all offers of overtime due to his caring for the children, his income will decrease.  He claimed his annual salary is now $49,400.

2. The father’s expenses include a mortgage to the (omitted) Bank in respect of the former matrimonial home of $300 each week.  He is currently assessed to pay to the mother $131.93 per week in child support payments, but no payments have been made to date.  That assessment related to the parties having equal shared care of the four children, and will obviously need to be changed depending on the care arrangements for the children in the future, as acknowledged by the father. 

3. The father, in his affidavit sworn 14 February 2017, addressed the financial aspects of the two parties living in separate houses.  His view was that it would be extremely difficult to require him to leave the former matrimonial home and obtain rental accommodation.  In addition to the financial difficulties, which he set out in that affidavit, the father said he was very concerned about the mother living in the home on her own with the children because of his concerns as to her capacity to parent and cope with the children. He is also concerned that if she cannot cope she would rely upon the assistance of the children’s maternal grandmother. Of course, the father agreed to the mother caring for the children on her own for some fourteen years, and during that period of time she was assisted by the maternal grandmother.  During that period of time she also suffered mental health issues.  That living arrangement was not of particular concern to the father prior to separation.

4. When this proceeding was first mentioned on Monday, 13 February 2017, the Court made it clear to the parties that the two younger children would be ordered by the Court to return to (omitted) in the short term, and that their mother could remain in (omitted) or return to (omitted) with the children.  Once the mother understood that the children would not be able to remain in (omitted) given the circumstances in which she had removed them from (omitted), the mother determined that she would not leave the children and would, even though she did not wish to, return to (omitted) to care for the children.  The mother proposed that she move back into the former matrimonial home to care for the four children, as has been the case throughout almost the entirety of their lives, and that the father leave the home.  The father was most reluctant to leave the home, and provided evidence as to the enormous financial impost that would place upon him. He also considered the home to be his. He refused to voluntarily vacate the home.

5. The parties had, however, both indicated that they could no longer reside in the same home.  The Court determined it was in the children’s best interests for the mother to return to the former matrimonial home and resume her role of primary carer, whilst the father continued in his employment and spent regular weekly time with the children.  The time spent with the father and children would give the mother some time alone in the event that she needed same.  The mother made clear that her priority was to be the primary carer for the children and that she would relocate back to (omitted) from (omitted) in order to continue in that role.

6. The mother’s complaints about the father are that he has been highly critical of her; that he has been abusive toward her and toward her mother; that he has shown little tolerance for anything that he did not agree with; and had little patience when it came to the children’s normal behaviours. 

7. The mother’s evidence was that in paragraph 59 of her affidavit sworn 3 February 2017, as follows:-

   “I do not have any personal support in the (omitted) area.  Given my current state of health I feel very much at home in (omitted).  I feel that if I had to move back to (omitted) it would be extremely difficult to cope emotionally and financially.  I feel that I need time to allow my health to improve.”

8. She said further at paragraph 62 of that affidavit:-

   “Given Mr Picot’s attitude towards me I cannot see at this point in time any other alternative situation working for the best interests of the children.

   63. I have no confidence that he could parent all of the four children if they were to be left with him. In fact I cannot recall Mr Picot ever having to look after all of the children at the one time.  Mr Picot relies heavily on others doing the caring of the children as he seems not to be able to look after the children for anything other than a very short period of time.”

9. Pursuant to s.60CC of the Family Law Act 1975 (Cth) (‘the Act’) the Court has given consideration to how to determine the children’s best interests. The Court is satisfied that there is benefit to the children of having a meaningful relationship with each of their parents and that there is not a need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The Court is satisfied that the mother’s mental health issues do not preclude the mother from caring for the children on the basis of the medical evidence before the Court.

10. Turning to the additional considerations as set out in s.60CC(3) of the Act, the Court notes that the views of the children are currently not before the Court and that it will be important in the future conduct of this matter to have the children’s views before the Court. Obviously they shall be given some weight.

11. What the Court is mindful of is that the nature of the relationship of the children with each of their parents has been that the mother has been their primary caregiver and remained at home in that role and that their father has worked very hard for their financial support but has often been absent from the home in that role.  Each of the parties have been involved in the care of the children to the extent that they have been able to. Each of them loves the children.  The return of the mother and younger children to the family home reunites the children and ceases the separation of the siblings.

12. The mother’s capacity to provide for the needs of the children is proven on a day-to-day basis and over many years in the absence of the father.  The father has also a capacity to care for the children, but that capacity has been exercised mainly outside working hours over many years.  Each of the parties understand the responsibilities of parenthood, and each of the parties have undertaken their respective roles as agreed to by them within their household.

13. The parties themselves concede that they can no longer live under the one roof.  The father refused to move and the mother felt that it was necessary for her to do so.  It is not so necessary.  The children will benefit by remaining in the home which they have always known, in the same care arrangements that have existed over so many years, throughout the period of this litigation and until such time as the Court makes a final determination, with further evidence before it to that end.  Alternatively the parties may reach some resolution of the matters as between themselves.  What the Court does this day is essentially return the children to the care arrangements that have been agreed to by the parties and were in operation.

14. The Court has not made any order (as sought by the mother) that the father repay the mortgage and rates on the property in (omitted), as each of the parties have very limited financial abilities at the present time. Their financial circumstances are not fully before Court.  The mother shall receive child support payments from the father as assessed.  She shall also receive Centrelink benefits.  The mother may or may not be in a position to make payments toward the mortgage secured over the home.  The father will need to accommodate himself in other accommodation, and being accommodation where he can house the children overnight.  He also may or may not be able to meet the mortgage repayments on the home.  The Court shall in the absence of any further evidence make no order in respect of that at the present time. 

15. The Court shall make orders as proposed by the mother in the proceedings.  The father, having acknowledged that the parties can no longer reside together under the one roof, and that  it is not in the best interests of the children (given the acrimony existing between the parties) that they continue to do so,  nevertheless sought to remain in the property to the exclusion of the mother. There was no concession given by the father and no addressing of the realities of the situation in which the parties find themselves. Hopefully these Orders will return stability to the children’s lives and provide a framework for a limited time during which the parties can attempt a negotiated resolution of the outstanding matters between them.

16. The Court has determined that until there is an opportunity afforded to the parties to put proper evidence before the Court, it is in the children’s best interests that they return to (omitted), and reside in the former matrimonial home with their mother. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  17 March 2017