Mullan and Mullan

[2017] FCCA 1311

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLAN & MULLAN [2017] FCCA 1311

Catchwords:
FAMILY LAW – Parenting – mother relocates to Darwin and father retains children in (omitted) – recovery order refused - proceedings transferred to (omitted).

Legislation:

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346

Applicant: MS MULLAN

Respondent: MR MULLAN

File Number: DNC 176 of 2017

Judgment of: Judge Young

Hearing date: 13 June 2017

Date of Last Submission: 13 June 2017

Delivered at: Darwin

Delivered on: 13 June 2017

REPRESENTATION

Counsel for the Applicant: Ms Pratt

Respondent appearing in person via telephone

ORDERS

1. That the children X born (omitted) 2010 and Y born (omitted) 2012 spend time with the mother during the Queensland school holidays with the mother to pay the cost of the airfares from (omitted) to Darwin or to the place she is residing and the father to pay the cost of the return airfare from Darwin or from the place the mother is residing to (omitted).

2. That both the parties and each of them do within 24 hours of a request by the solicitor for the other party to do so provide a sample of his/her urine to a qualified medical practitioner for the purpose of the administration of procedures to test for the presence of opiates, barbiturates, amphetamines, heroin, cannabis or any derivative of those substances, such sample to be provided to the medical practitioner in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 such that the integrity and identity of the sample can be guaranteed with the results of such testing to be made available to the other party’s solicitor as the results become available.

3. That the requests for samples shall not exceed one in any calendar month.

4. That the cost of each such drug testing procedure shall be borne by the party providing the sample.

5. That pursuant to section 62G of the Family Law Act1975 the parents and the children X born (omitted) 2010 and Y born (omitted) 2012  attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court, on a date and time to be advised, for the purposes of the preparation of a family report to be made available to the Court by 30 September 2017 NOTING that child care facilities are not available and another party will be required to attend to mind the children during the interviews.

6. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children and the factors contained in section 60CC of the Family Law Act1975 the following opinions should be included:

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

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

   (c)Any other matters that the Family Consultant considers important to the welfare or best interests of the children.

7. That the solicitors for the mother and the father forthwith provide the Family Consultant with a copy of all relevant filed material they seek the Family Consultant to read.

8. That the Family Consultant has leave to inspect any relevant subpoena material if requested by either party.

9. That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.

10. That pursuant to rule 8.02 of the Federal Circuit Court 2001 these  proceedings are transferred to the Federal Circuit Court at Cairns and listed on 18 October 2017 at 11.30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 176 of 2017

MS MULLAN

Applicant

And

MR MULLAN

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter involving X, who is six, and Y, who is four, almost five.  The parties lived in (omitted) together until October last year when they separated.  The mother and the two children went to New South Wales where they were staying with the maternal grandmother at least, I am not sure about the maternal grandparents, and the children remained there with the mother until about 18 March 2017. Around about that time the father, it appears, drew up a parenting plan and that provided for a series of four-week and three-week periods or blocks when the children were to spend time with the father.

3. It is clear to me from the parenting plan that what was envisaged was that the mother would be living interstate.  That is clear because there is provision for travel in that.  I do not accept the father when the father says that the period in New South Wales was to be temporary.   

4. On 14 March the mother told the father that she was re-partnering with Mr R.  On 15 March the father told her, the mother, that he was unhappy about her taking the children to Darwin.  There is a text or a message to that effect in the documents.  It seems that around about that time the father and the mother arranged for the children to spend time with the father.  Initially, they were going to spend a week in New South Wales.  It is apparent from the affidavit material that the extended families of both parties appear to live nearby each other.  So the father was going to spend a week with the children with the father’s parents and then return to (omitted) for three weeks.

5. On about 18 March the mother flew to Darwin where she was about to begin cohabitation with Mr R, it appears.  I am satisfied from the material that the father changed his mind when it became apparent that the mother was going to move to Darwin with Mr R and it is clear, I think, that he decided that he would take the children into his care at about that time because, on 23 March 2017 – that is, a mere five days later – the father was claiming to Centrelink that he was caring for the children full time.  That was clearly not consistent with a three-week or four-week period.

6. So it appears that that was a large factor in the father’s motivation.  It is also clear from the correspondence that the father, who appears to have some involvement with what appears to be perhaps a (religion omitted) form of Christianity, was sending messages to the mother which have a kind of disturbing tone to them, on one interpretation, including a passage that is in a letter that is annexed at page 47 of the mother’s affidavit where the father includes what appears to be a Biblical passage which, on one reading, is threatening.

7. The family consultant observed that he did not think the father had adjusted to the separation and had not emotionally accepted the separation.  In my view, there is evidence that that may well be the case and I am concerned that that is a large motivation in his decision to remove the children.  The mother says that, from about that time, she found great difficulty in speaking to the children by telephone.  For some reason that is not entirely clear to me, she ultimately obtained a location order from this Court and process was served on the father.  Why that was necessary is not absolutely clear, although there are text messages where the mother asks the father to say what his present address is.

8. While I think there are some suspicious circumstances, I am not prepared to conclude, at least on an interim basis, that the father was keeping his whereabouts unknown from the mother, though I think that is a definite possibility.  The mother commenced proceedings here in Darwin, seeking a recovery order.

9. The competing proposals of the parties, as they stand at the moment, are as follows.  The mother is living with Mr R, it would appear, and she proposes that the children come to live with her and Mr R.  There is no evidence from her about whether the children know Mr R or have ever clapped eyes on him before.  There is no indication that they have.

10. Her proposal is that the children are to move to Darwin, a town in which they have never been before and where they have no connection and they live in a house with a man they do not know.  As I say, these children are six and almost five.  It occurs to me that that arrangement is likely to be potentially quite difficult for these children. The father has himself relocated from (omitted) to the (omitted) and has enrolled the children in a school, a (omitted) school, the (omitted) School there, and is apparently attending a church there.

11. He proposes that the children will remain living with him in a two-bedroom unit, attending the (omitted) School and apparently attending the church which he is attached to.  The father has annexed to his affidavit a letter from the school and dated 17 May from a Ms F who is the teacher for both children.  Both children are prep, grade prep, even though they are perhaps slightly different ages, apparently related to X’s – the six-year old’s – lack of readiness for school at this stage.  He has been home schooled.

12. She saw nothing particularly exceptional in these children, though noting that they were a little bit below average in their academic readiness for school.  What she says of the father is that the father walks the children to class early each day and assists them with their bags, folders, lunch boxes, hats and jackets.  The children are well dressed and clean and in school uniform.  They have a healthy lunch.  They are openly affectionate with their father and adjust well to his coming and going.  She says the father is always early to pick them up at the classroom door and speaks to her appropriately and has questions about the children’s educational progress.

13. Ms F says that in these last few weeks she has seen a lot of development in particularly X’s educational development and she attributes some of this to the support the father is providing at home on a daily basis.  Significantly, she says that the father has informed her of his history of substance abuse and she has observed that he has not presented at any time under the influence.  She says the children appear to be doing well at school.  There is also a letter from Ms S who is the pastor at the (omitted) Church in (omitted) which is on the (omitted) and he says that he was acquainted with both the mother and the father from their time in the (omitted) in 2010.

14. He says that he has known them both to struggle with drug addiction.  He does not say what drug addiction but both parties have told me they were dependent upon prescription opiates.  The father says that he has stopped his opiate abuse and that appears to be supported by the letter from Ms S. Ms S also includes some observations about the children, apparently because they attend Sunday school and the youth group at the church and he seems to think that the children are settling down in their attitudes and emotions and that they are better off than they were previously.

15. There is also a letter attached from a Mr and Ms D who say they live next door to the father.  They know both the mother and the father.  They also say that the father has told them about his past drug dependence and they think the father is not showing signs of drug dependence at the moment and appears to be doing well.  There is also a letter from a Ms S who is the youth leader at the (omitted) Church and she says that the children appear to be doing well with their father and their home life is stable.

16. I will say one thing about the letters that say the father is – and I will use a neutral description – over his drug dependence.  He told me in submissions that he is being treated for his opiate dependency and he says the treatment involves the prescription of Suboxone which he confirmed to me was, in itself, an opiate and he continues with his treatment which I understand is daily and the Suboxone is administered daily at the chemist.  So it is clear that the father has a continuing problem with opiate dependency, though he is receiving treatment.

17. The materials also make it clear that the mother was an opiate dependent person.  In her affidavit filed in support of her application she referred to using Oxycontin for pancreatitis or pancreatic pain.  The father asserts that the mother is showing signs of continuing to abuse prescription medication and he points to some evidence in her phone records of frequent calls to doctors which he says is consistent with doctor shopping for opiates.  I cannot make any finding about that and I do not.  She says that the explanation is quite otherwise and she was seeking a particular medical treatment which was not easily found.  I do not make any finding about that at all.

18. I should say something more about the father.  He told me in submissions that he was not receiving any mental health treatment.  It is clear from the 11F report that, while that may be strictly true at the moment, he has quite recently received psychiatric and psychological treatment, he says, through Vietnam Vets.  He did not tell me precisely what the treatment was for but he is receiving treatment or has received treatment relatively recently.  I think it is the case that both of these parents have had serious problems with drug dependency and, in particular, prescription opiates.

19. It may be that both are free of that dependency.  I suspect there would need to be some evidence of that before one could confidently accept that they were both free of their opiate dependency.  I accept that the children appear to be doing reasonably well in (omitted) at the moment.  It also appears likely that until relatively recently – that is, when the father unilaterally decided to take the children and that is in mid-March, some three months ago – that the mother was the primary carer for these children.  I am sure they are missing her very much. 

20. However, the two competing proposals that I have to consider at this stage are between what appears to be a settled arrangement in (omitted) where the children will be going to school and appear to be doing well and the father, at least, is not showing any signs of the mental health problems or drug-dependency problems that he is said to be experiencing or at least he is not showing signs that is having a negative effect on his parenting.  The mother, meanwhile, has relocated to Darwin and is living with Mr R.  Her proposal would see a quite significant upheaval or further upheaval in these children’s lives, particularly, as I have said, moving to a town where they have not lived before and living in a house where they have not lived before with a man that they do not know. 

21. It appears to me that is a very significant change. So having regard to the best interests of the children as the paramount consideration and referring to the matters in section 60CC the primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents. As there has been a relocation, there is a real question mark about how that is to take place. I am not persuaded that one proposal over the other is likely to ensure that the children have a meaningful relationship with the other parent.

22. I am concerned about the allegations against the father that he has not been facilitating the children’s relationship with their mother.  There seems to be some evidence of that but, again, on an interim hearing I am not satisfied that I can find that.  It is up to the father to facilitate that arrangement.  It is not up to the children to decide whether or not they are going to speak to their mother at a particular time so while I do have my doubts about the father’s commitment to facilitating the children’s relationship with their mother, I am not satisfied at the moment that it is entirely clear cut one way or another. 

23. I suspect that the mother is likely to facilitate that arrangement, though if she is going to be in Darwin it would appear the situation is much the same – that is, the children are going to have to travel to see the other parent.  I will say something about physical and psychological harm through exposure to abuse and neglect or family violence.  There does appear to be evidence of family violence during this relationship, though there is no evidence of any family violence since separation.   

24. There is no particular evidence that the children were subject to abuse and neglect.  On the contrary, at the moment, the evidence appears to be that on a physical basis the children are well cared for.  In relation to the additional considerations, there are no views that I give any weight to having regard to the age of the children.  The nature and relationship of the child with each of the child’s parents, well, I am satisfied that until March, at least, from October last year until March, the mother was the primary carer for these children. 

25. However, since March of this year, for the past three months, it appears that the father has been the primary carer and judging by the materials that are annexures to his affidavit he appears at least on a physical level to be able to ensure that the children are well dressed, go to school, and are well fed.  In relation to the decision making about long-term decision making about the child, well, both parents are in the midst of a bitter dispute at the moment and it appears that the father, at least, made the decision to enrol the children in this present school unilaterally. 

26. There have been difficulties in communication although I am unable to make any particular finding about the reason for that and spending time with the children, well, it appears both parents have sought to spend time with the children at the very least.  The likely effect of any changes in the child’s circumstances, as I say, the mother proposes that the children simply be removed to Darwin and will live with her and Mr R.  As I know nothing of Mr R and the children, apparently, know nothing of Mr R, it is very difficult to know what the consequence of that will be.   

27. On the other hand, the father is living in a two-bedroom unit by himself with the children.  The practical difficulty and the expense of spending time, well, both children– the children are in different states at the moment so they will have to spend holiday time with the other parent for the time being.  The capacity of each of the child’s parents, well, there is a real issue about that, in my view.  The mother has at least been an abuser of prescription opiate medication until some time ago.  It is a question mark about her present status vis-a-vis opiate medication.  I cannot make any finding about that. 

28. The father says frankly that he is dependent and he is receiving treatment.  There is nothing particularly relevant about (g).  The children are not indigenous children. The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents, well, the father has unilaterally withheld the children which raises real question marks about his attitude to the children and responsibilities of parenthood.  The mother proposes to simply move the children to another city and into a house with another man who is not their father, in circumstances that suggests to me that she may not have a great deal of insight into how that is likely to affect the children.  One might have thought that it was appropriate to have a period of introduction but perhaps the practicalities of the arrangements did not allow that.

29. I have said something about family violence.  I do not propose to say anything more about that.  Weighing all those matters up and assessing the two proposals or the competing proposals of these parents, I am not satisfied that it is in the best interests to make a recovery order that would see these children removed from their present circumstances and brought to Darwin.   

1. I think it is appropriate to leave the children in their present circumstances, although it is not a status quo in the sense that Goode & Goode [2006] FamCA 1346 discusses it. I am satisfied that it is an arrangement that has been in place for three months. It is a relatively stable arrangement and the children seem to be doing okay for the time being. I propose to make an order for the preparation of a family report and that will have to take place in the Cairns Registry. I propose to make standard orders for each party to submit to random drug testing on request by the other up to once a month – random urinalysis testing. I propose to make orders that until further order the children are to spend the Queensland school holidays in Darwin with their mother, so that will be the coming holiday and presumably there is another holiday at the end of term 3 and that will be the Christmas holiday as well.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 19 June 2017