MINTON & NYBERG

[2019] FCCA 649

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINTON & NYBERG [2019] FCCA 649

Catchwords:
FAMLY LAW – Non-appearance of mother at hearing – mental health and drug issues on the part of the mother – relocation of children to Darwin with their father considered to be in the best interests of the children – orders accordingly.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3) 65DAA

Applicant: MS MINTON

Respondent: MS NYBERG

File Number: BRC 4019 of 2009

Judgment of: Judge Egan

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Brisbane

Delivered on: 18 February 2019

REPRESENTATION

Solicitors for the Applicant: Ms. Rosen of R A Solicitors

Independent Children’s Lawyer R. Ellis of Raise Law

Respondent: No appearance

IT IS ORDERED:

1. That the Father have sole parental responsibility for [X] born on … 2006 and [Y] born on … 2007 (the ‘Children’).

2. That each parent shall have the responsibility for the day to day care, welfare and development of the Children whilst the Children are in their respective care.

3. That the Children shall live with the Father.

4. That the Father be permitted to relocate the Children from Brisbane to Darwin at the conclusion of the 2019 school year.

5. That pending the Father’s relocation of the Children to Darwin the Mother shall spend time with and communicate with the Children at all such reasonable times as may be agreed to in writing between the parties and failing agreement as may be Ordered by the Court but shall include:

   (a)Each alternate Sunday between 10.00 am and 4.00 pm with the time to be supervised by the Father.

After the Father has relocated to Darwin

1. That upon the Mother giving not less than one weeks’ notice of her intention to travel to Darwin:

   (a)On Sunday between 10.00 am and 4.00 pm with the time to be supervised by the Father.

2. That upon the Father travelling to Brisbane and providing at least one weeks’ notice to the Mother:

   (a)On Sunday between 10.00 am and 4.00 pm with the time to be supervised by the Father.

3. That by telephone each Wednesday and Saturday between the hours of 6.00 pm until 6.30 pm (Darwin Time) with the Father to provide to the Mother his current mobile telephone number.

4. That despite any other order, should the Mother be hospitalised for mental health related issues, the Mother’s time is suspended until such time as the psychologist recommends she is stable enough to recommence her time with the Children.

5. That the parties are hereby restrained from

   (a)Using drugs at all; or

   (b)Drinking alcohol in excess whilst the Children are in their care or within seventy-two (72) hours of the Children coming into their care

   (c)Keeping drug paraphernalia in a house or care where the Children are present

   (d)Exposing the Children to other people who are under the influence of drugs or excessive alcohol

   (e)Exposing the Children to domestic violence.

6. That the Mother shall undertake drug testing by way of blood analysis to be undertaken within twenty-four (24) hours of a request by the Father, to be sent via text message, and for that purpose:

   (a)The mother will keep the Father informed of her current mobile number to receive such text

   (b)The Mother will retain a referral to QML for that purpose

   (c)The test shall be undertaken in a supervised capacity, with the Mother to provide QML with a copy of this order and photo identification and request that the test certify same

   (d)QML are hereby irrevocably authorised to provide a copy of the result directly to the Father

   (e)The Mother is to bear the costs of the first four (4) tests of any calendar year and thereafter the Father is to bear the cost

7. That the Mother will engage with and remain engaged with a psychologist to address her mental health stability and will notify the Father within two (2) weeks of the name and contact details of her treating psychologist. This order authorises:

   (a)The Father to provide to the psychologist a copy of the Family Reports and any affidavits filed in these proceedings

   (b)The psychologist to communicate with the Father any concerns they may have for the Mother’s mental heath

8. That despite any other order, should the Mother be hospitalised for mental health related issues, the Mother’s time is suspended until such time as the psychologist recommends she is stable enough to recommence her time with the Children.

9. That both parents undertake forthwith and within six months the Parenting Orders Program (POP) and shall provide to the other parent evidence of completion of the course within 6 months.

10. That the Father will facilitate the Children to be engaged with a child therapist of his choice until such time as the therapist recommends that the Children do not need to attend and shall provide the Mother within 4 weeks of the name and contact details of the therapist.

    (a)Should the Mother wish to attend upon the therapist she is to bear the costs of such appointments.

11. That these Orders shall authorise any educational institution to which the Children attends to provide to the Mother, at the Mother's expense, all reasonable requests for information, including but not limited to, school reports, newsletters, and important school notices.

12. That these Orders shall authorise any health professional who attends to the Children to provide to the Mother, at the Mother's expense, all reasonable requests for information by the Mother as to the Children.

13. That each parent inform the other parent as soon as reasonably practical, of any serious illness or hospitalisation of the Children.

14. That each party shall keep the other informed as to their current residential address, landline telephone number, mobile telephone number, email address (if any), and facsimile transmission number (if any). They shall notify any change in the same within forty-eight (48) hours of the change.

15. That neither party shall denigrate the other, nor permit any other person to do so, in the presence or hearing of the Children.

16. That neither party shall discuss these proceedings with the Children.

17. That the ICL is hereby discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 4019 of 2009

MR MINTON

Applicant

And

MS NYBERG

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for final hearing today.  The questions for consideration involved parenting orders, parental responsibility and relocation orders.  The father is represented by Mr Rosen, a solicitor.  The independent children’s lawyer is represented by Ms Ellis.  There is no appearance on behalf of the mother who was called three times, both in the precincts of this Court as well as in the precincts of the Court on a different floor of the Federal Circuit Court of Australia where the matter was first listed for hearing.

2. Ms Ellis tendered exhibit 1 which was a letter dated 4 February 2019 directed to the mother which, in its first paragraph, recorded that this matter was listed for final hearing on 18 and 19 February 2019 in the Federal Circuit Court of Australia at Brisbane.  The address of the Court as 119 North Quay, Corner North Quay and Tank Street was also given in the letter.  That letter was sent in a timely fashion to the mother in that regard.  It is to be noted that trial directions were made on 14 March 2018 by Judge Howard, and for the trial to be listed for hearing on 18 and 19 February 2019.

3. Ms Ellis also referred the Court to an affidavit filed and sworn by her on 12 February 2019 wherein, at paragraph 11 thereof, reference was made by Ms Ellis to a telephone conversation which was held between her and the mother on 14 January 2019, in which the mother was reminded of the trial date, and was reminded to do all things that were required of her pursuant to the trial directions between the time of such telephone call and the trial date.  In that regard it is noted that the wife did not comply with trial directions.

4. The short relevant history of this matter is that the applicant and the respondent commenced living together in Darwin in … 2004.  The parties moved to Queensland in 2005.  On … 2006 the elder of the two children of the relationship was born.  On … 2007 the younger of the two children of the relationship was born.

5. Between 2007 and 2009 there were various instances of alleged domestic violence which culminated in consent domestic violence orders being made against the father.  Proceedings were commenced in the Federal Circuit Court of Australia at Brisbane on 11 May 2009.  On 6 July 2009 interim consent orders were made which provided for the children to live with the mother and have supervised time with the father.  On 8 September 2009 the mother and father entered into final consent orders whereby the children were to live with the mother, and spend time with the father, which contact would incrementally increase with the passage of time.  The parties separated in November 2008.

6. On … 2013 another child was born to the mother and another male person.  On … 2015 the mother was admitted to the Mental Health Unit at the Suburb A Hospital suffering from a mental illness.  On that day the children commenced living with the father after the intervention of the Department of Child Safety.  The children were to have supervised time with the mother after that time.

7. On 23 May 2016 orders were made for the children to live with the father, for the father to have sole parental responsibility, and for the children to have supervised time with the mother.  Those were interim orders.  Subsequent orders were made increasing the time spent by the children with the mother culminating in an order on 16 November 2017 providing for such time to be unsupervised during the daytime.

8. In October/November 2018 the mother ceased having meaningful contact with the children, and continued a pattern of failing to undertake drug testing which had previously been the subject of Court orders.  That pattern continued into January 2019 in relation to tests which had been organised by the ICL.

9. The ICL filed an affidavit of one Dr B on 7 February 2019.  Dr B is a consultant psychiatrist.  Relevantly, Dr B, in respect of his examination and consultations with the mother, recorded that the mother suffered from a mental health condition called “Cyclothymic Disorder” which was characterised by mood instability, particularly episodes of depressed and elevated mood. 

10. The condition was said by Dr B to be of mild to moderate severity.  Symptoms included leading a disorganised life with instability which would impact on her interpersonal relationships, and her ability to plan and lead her life in an organised fashion.  It was said by Dr B that the condition would continue into the foreseeable future.  It was also said by Dr B that her mental health problems were likely to impact on her parenting ability in an adverse way.

11. Dr B stated that past conflict may have been caused by her mental health problems but that that should not necessarily preclude the possibility of the mother having contact with her children for short periods of time.  Further treatment for the mother’s mental health condition was recommended.

12. A family report was prepared by one Ms C, and is dated 12 March 2017.  Ms Ellis, on behalf of the ICL, pointed to differences between parts of the report of Ms C, and answers to questions recorded in the report of one Dr D who prepared a family report dated 10 December 2018.  In the report of Ms C it was recorded at [65] of the report that the mother had described that she had grown up in a happy childhood in the country.  At 7.2.1 of the report of Dr D recorded that the mother described her childhood as being horrible, recording that the mother had stated that she worked as a prostitute for some good period of time.

13. At [122] of the report of Ms C it was recorded as follows:

    Regarding the issue of relocation, should the Court allow Mr Minton and the children to relocate to Darwin, the impact would be that they would have additional family support in the form of Mr Minton’s extended family.  Mr Minton has stated that he will continue to facilitate a relationship between the children and their mother through visits every second school holidays to Brisbane, and through phone calls where the children could speak to their mother and sister, [Z], on a regular basis. 

14. It was recommended by Ms C that the children reside with their father.  It was pointed out in submissions made by Ms Ellis that neither the mother, nor the father, have any extended family support mechanisms in and about Queensland.

15. At 10.8.1 of the report of Dr D it was recorded that the father indicated that he wanted to relocate to Darwin to see how things went.  It recorded that the father had said that there was a significant family support network in Darwin.  The father stated that he would try to be as flexible as possible in relation to the children having some contact with their mother.

16. At 10.8.4 Dr D, in her report, said as follows:

    The report writer forms the opinion that there is a strong argument for relocation to Darwin.  The report writer acknowledges that while relocation would initially be disruptive to the children, they would gain a closer proximity to their extended family and supports.  It is necessary to note that while such a move would almost certainly fracture the children’s relationship with Ms Nyberg, the children would still have access to Skype, phone calls and holiday time with Ms Nyberg and the other child.  Ms Nyberg may also be able to relocate to Darwin should she desire, and should it be possible to reach an arrangement ... 

    The report writer notes that Ms Nyberg indicated in her interviews that there is little keeping her in Queensland at this time.  If the Court determines that relocation is in the best interests of the children, and the family unit as a whole, it is recommended that this occur without delay given the need for the children to resettle into school.  In addition, it is recommended ... that the child, [X]’s wishes, be respected as to how she spends time with her mother, that initially the mother’s time with the children during holiday periods be supervised by a prior foster carer named Ms E over a period of three overnights, and if there is no reported issues over a five night period, and then if there were no reported problems extending to at least half the school holidays as can be negotiated.

17. As indicated earlier, the Court ordered that the wife undertake regular drug testing as required.  The wife has failed to do so.  There are serious allegations concerning the mother’s addiction to “ice”.  That constitutes a very real risk to the children in all of the circumstances.  It is asserted on behalf of the ICL that there is no risk associated with the children living with the father on a permanent basis.  The evidence supports that submission.

18. Turning to section 60CC matters, it is noted that the primary considerations as set out in section 60CC(2) of the Family Law Act 1975 (Cth) (‘the Act’) relate to the benefit of the children having a meaningful relationship with both parents, as well as the need to protect the children from physical or psychological harm, or from being subjected to, or exposed to, abuse, neglect or family violence.

19. Despite there being past domestic violence orders in place, the source of the conflict – namely the close relationship between the mother and the father – no longer exists.  The ICL is satisfied that the father is not a risk to the children, and the Court accepts that position.

20. As to the matters set out in section 60CC(3) of the Act, the court is satisfied that the ICL has taken the best interests of the children into account before making its recommendations.

21. In all of the circumstances the evidence warrants a finding that it is in the best interests of the children that they live with the father.

22. As to section 65DAA considerations, the Court is of the view that considerations of practicality do not enable any order to be made for equal time or equal shared parental responsibility.  The children will be living with the father at a geographically distant place from that of the mother.  The father is not a risk to the children whereas the mother has drug and mental health issues.  It is not appropriate in these circumstances that there be a shared parental responsibility order.  The order which is appropriate is that the father ought to have sole parental responsibility for and in respect of the two children, and that the children live with him in Darwin.

23. The Court has been handed a set of draft orders handed up by the ICL.  Having read those orders they are in all respects appropriate, and in the best interests of the children, and orders are made in accordance with those proposed draft orders, the contents of which are supported by the father, and it is so ordered.

24. I will make orders as per the draft handed up to the Court and signed by the Court. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 11 March 2019