Neville and Stilton

[2018] FamCA 962

FAMILY COURT OF AUSTRALIA

NEVILLE & STILTON [2018] FamCA 962

FAMILY LAW – CHILDREN – Interim application for parenting orders – Where the mother seeks orders that she be permitted to relocate the child’s residence to Brisbane – Where the mother’s husband’s employment has been relocated to Brisbane – Where the mother and her husband are expecting a child – Where the father agrees to the mother’s application on the basis of certain conditions – Where the child has not spent time with the father for 19 months – Where the father has a history of substance abuse – Where the father has expressed an intention to also relocate to Brisbane – Where the Independent Children’s Lawyer supports the mother’s application – Where the Court finds that it is in the best interests of the child for her to be permitted to relocate to Brisbane – Orders made in accordance with the mother’s application, “without prejudice” to the father’s ability to bring a further application for parenting orders.

Family Law Act 1975 (Cth) s. 60CC

APPLICANT: Ms Neville

RESPONDENT: Ms Stilton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2762 of 2015

DATE DELIVERED: 12 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 12 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Watson & Watson Solicitors

SOLICITOR FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

THE COURT ORDERS THAT:

1. Orders be made in accordance with the short minute of order provided by the mother and set out hereunder.

THE COURT NOTES THAT:

(A)It requests that the Independent Children’s Lawyer, as soon as practicable, send a letter to the father setting out the recommendations of Dr B in relation to the father’s issues with alcohol dependence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neville & Stilton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2762 of 2015

Ms Neville

Applicant

And

Ms Stilton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the mother has filed an application that she be permitted to relocate the residence of the parties’ child, X, born in 2013 (“the child”) to Brisbane.  The circumstances in which the mother seeks those orders are set out in her Affidavit filed on 19 September 2018 and the Affidavit of Mr Neville, the mother’s husband, filed on 5 November 2018.   

2. The Independent Children’s Lawyer supports the mother’s application.

3. The father filed a Response to an Application in a Case and supporting Affidavit on 9 November 2018.  The father does not oppose the child being relocated to Brisbane, but seeks that the following orders be made in relation to that relocation:

   1. [The child’s] extended family (the father's parents, aunties, cousins etc.) have regular access to [the child] including overnight.

   2. [The child] has regular access to her biological father.

   3. Regular Skype or similar video communication, be accessible for [the child] to connect with her father and his family.

   4. [The child’s] biological father has input and feedback regarding her schooling and extracurricular activities.

   5. Further to Order sought number 6 - it is added that all allegations toward [the child’s] father be formally dismissed.

   6. Both the Applicant and the Respondent be responsible for their own individual costs for every Application and Response.

4. By way of broad summary of the background facts in this matter, since the breakdown of the parties’ relationship, the mother has married Mr Neville, whose employment has now been relocated to the Brisbane area.  The mother is expecting a child with Mr Neville and wishes to relocate, with the child, to be with Mr Neville in Brisbane.  

5. In this matter, there is a significant issue as to whether the father’s parenting capacity is impeded as a result of substance abuse and, in particular, alcohol addiction.  As a result of the father’s issue with alcohol abuse, there are concerns regarding the harm that could be caused to the child if she were to spend time or communicate with father.  As a result of those concerns, the child has not spent time with the father since 8 April 2017.  The father’s presentation during the course of these proceedings satisfied me that those concerns are real.

6. Dr B, who has been appointed as the Single Expert in this matter, has provided a report to the parties recommending that the father undergo certain programs to address his substance abuse issues, prior to the child spending time with him in a supervised context.  During the course of the hearing today, the father has indicated that he has undertaken various of those programs and that he is, to put it mildly, “sick” of the fact that he is required to undergo any further programs.  The Independent Children’s Lawyer submitted that she does not consider that the father has properly implemented Dr B’s advice.  Despite the father’s protests, it is imperative, in my view, that he revisits Dr B’s advice.

7. The father has indicated that, at some stage, he intends to also relocate to Brisbane, as his extended family reside there.  While initially indicating that he considered the child’s relocation to Brisbane to be in her best interests, the father expressed concern in respect to his ability to agitate issues in this Court concerning the orders he is seeking for the child to spend time with him and his family.  I have, today, indicated to the father that he is entitled to bring such proceedings as he deems fit and recommended that he formalise his application with an appropriate Application in a Case, supported by an Affidavit.  

8. The mother and the Independent Children’s Lawyer recognise that, if orders were made as sought by the mother, they would be stated to be “without prejudice” to the father’s right to bring a further application in respect of spending time with the child and other such matters as he deems fit. 

9. I am satisfied that the child has a close and loving relationship with the mother and that the child has not seen the father for a period of 19 months.  I am further satisfied that, unless and until the father takes appropriate steps to address his alcohol dependence, the child would be at risk of harm in spending time or communicating with him.  This was amply demonstrated by the irritated, unreasonable and overly emotional presentation of the father in the Court today.

10. Having regard to the matters set out in s 60CC of the Family Law Act 1975 (Cth), including the matters to which I have specifically referred, I am satisfied that it is in the best interests for the child to remain living in the family unit consisting of the mother, Mr Neville and her soon to arrive new sibling. That can only be achieved if the mother is permitted to relocate the child to Brisbane.

11. In those circumstances, I make orders in accordance with the minute of orders provided by Counsel for the mother.

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore judgment of the Honourable Justice McClelland delivered on 12 November 2018.

Associate: 

Date: