PAINE & ASHTON

[2015] FCCA 2657

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAINE & ASHTON [2015] FCCA 2657

Catchwords:
FAMILY LAW – Parenting – urgent application – children aged 4 and 2 years old – parties and children moved to (country omitted) in March 2015 – relationship broke down soon after – dispute about whether or not there was an agreement to return to Australia – father took youngest child to Australia without mother’s knowledge or consent – factual issues in dispute which cannot be determined on an interim basis – parents interviewed by family consultant who gave oral preliminary report.

Legislation:

Family Law Act 1975, s.60CC

Goode and Goode (2006) FLC 93 - 286

Applicant: MS PAINE

Respondent: MR ASHTON

File Number: MLC 8584 of 2015

Judgment of: Judge Harland

Hearing date: 23 September 2015

Date of Last Submission: 23 September 2015

Delivered at: Melbourne

Delivered on: 25 September 2015

REPRESENTATION

Counsel for the Applicant: Ms Canturi

Solicitors for the Applicant: Cash & Stavroulakis Lawyers

Counsel for the Respondent: Mr Moore

Solicitors for the Respondent: Moore Law Firm

ORDERS

1. The father is to return the child Y (“Y”) born (omitted) 2013 to the mother’s care by no later than 24 September 2015 at 10.00am.

2. The mother is to collect Y from the father’s residence.

3. The children X (“X”) born (omitted) 2011 and Y are to live with the mother.

4. During the time that the mother and children reside in (country omitted), the father is to spend time and communicate with the children as follows:

   (a)by telephone and or FaceTime at all reasonable times;

   (b)in (country omitted), for a period of no more than 4 consecutive days, twice per month with the dates and times to be agreed between the parties in writing;

   (c)that in relation to order 4b, the mother and father equally share the costs associated with flights; and

   (d)that in relation to order 4b, the mother will permit the father to reside at her place of residence in (country omitted) during his time with the children.

5. The mother relocate to Sydney with the children by no later than 15 December 2015.

6. The matter be transferred to the Sydney Registry of the Federal Circuit Court of Australia and it is requested that a mention date be provided to the parties as soon as possible.

7. Upon the mother’s relocation to Sydney and pending further order, the father is to spend time with the children for two (2) consecutive nights per week as agreed between the parties, and failing agreement, as nominated by the father.

THE COURT NOTES THAT:

A.These orders were made on 23 September 2015 before the written reasons were given.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8584 of 2015

MS PAINE

Applicant

And

MR ASHTON

Respondent

REASONS FOR JUDGMENT

1. This is a difficult case. The parents of X, aged four and Y, aged two have at times focused on the conflict between them rather than their children. This is an observation which the family consultant made and with which the Court concurs. It is important to recognise that the breakdown of the relationship is relatively recent and in somewhat difficult circumstances. It has been a stressful time for both.

2. The parties met in 2009 and started living together in late 2009. They married on (omitted) 2011 and separated on 23 April 2015.

3. The parties lived in Sydney for most of their relationship. They made a joint decision to relocate to (country omitted) in March 2015 in order for the wife to accept lucrative employment for the benefit of the family.

4. The family consultant observed that one of the great sources of conflict between the parties is the fact that the mother has been financially supporting the family whilst the father has been unemployed for the past three years.

5. The family consultant also observed that the father was highly critical of the mother in various aspects and took no responsibility for the current dilemma faced by the family at all.

6. The Court was greatly assisted by a robust oral section 11F report from the family consultant who saw both parties earlier in the day. It is of enormous concern to the Court that the father and his solicitor did not take on board any of the concerns raised by the family consultant. The father did not alter his proposal in any way, although, he was given ample opportunities to do so throughout the proceedings.

7. The father places much emphasis on what he refers to as an agreement the parties made with the assistance of a life coach before moving to (country omitted). He said that they agreed that they would try living in (country omitted) and if things worked out they would return within a few years. They agreed that they would reassess whether or not they wanted to stay in (country omitted) after three months. There is nothing definitive in what the father says about this and furthermore, it is clear that the discussions took place in the context of an intact relationship.

8. The father says this was the agreement. The mother denies this and says that they had discussions but no agreement was reached. Other factual issues in dispute include who the primary carer of the children was, the nature and extent of any family violence and who was responsible for it, the mother’s mental health and whether the mother is a negative influence on the children.

9. There is a dispute between the parties as to what financial support the mother provided to him after separation. The father says he was unable to remain in (country omitted) because he did not have any money. The mother says that she gave the father up to $3000 (country omitted) dollars per month for his expenses.

10. Initially in her urgent court application the mother proposed to live in Melbourne. She said this was because she had family support in Melbourne. This proposal was problematic because it would have meant that the children, who are very young, would not be able to see both parents regularly for significant periods as they are used to. To her credit, by the time the mother appeared in Court she no longer proposed to live in Melbourne but agreed to return to Sydney. The issue for her was the need to save some funds to enable her to support herself and the children on her return to Sydney and to look for employment in Sydney. She sought three months to do so. She proposed that the father spend time with the children in (country omitted) for two block periods of four days each month while she remained in (country omitted). Her proposal included that she would pay for half of their airfares and would move out of the apartment during that period. She also proposes that upon her return, that the spend time arrangements in place in (country omitted) continue whereby the father would have care of the children for three nights a week.

11. The father in contrast did not modify his proposal in any way. He proposed that X be immediately returned to his care and that the children live with him and spend alternate weekends with the mother. His proposal would see the children’s time with their mother drastically reduced. His proposal did not take into account the impact that this would have on two very young children who do not yet understand the concept of time.

12. In response to the query as to why the father’s proposal was so limited, the father’s solicitor’s response was that the father felt that the mother was not a good influence on the children. When pressed, his solicitor referred to paragraph 122 of the father’s affidavit in support of this submission. He says they had been arguing and that the mother wanted to come over and see the children. He says he agreed to the mother coming to dinner that night. He says “she became incredibly upset in front of the children. X and Y appeared very distressed, confused and anxious in response to the mother’s presence and behaviour.” That is the extent of paragraph122. The solicitor then referred to paragraph 110 which says “the applicant has a controlling and manipulative personality. It became worse as the marriage deteriorated.” Paragraph 110 is not evidence. Assuming that the mother did become upset in front of the children, it would be distressing for them. It is preferable for parents to protect children from their emotions. However, it is important to recognise that parents are human too. This is in the context of a very recent separation with high conflict between the parents. It is unrealistic to expect that either parent will always behave impeccably. It is clear that both parents have argued in front of the children. This falls well short of supporting the father’s submission, rather it supports the family consultant’s concerns about the father’s negative attitude towards the mother.

13. The father deposes to the parties having discussions about the children returning to Australia. He sets out the conversation and “WhatsApp” message at paras.55 to 57 of his affidavit. There is no reference to a definite return date being agreed. In fact what did occur by agreement was that the father took Y to Australia for a week. He returned on 24 August 2015. The father says that on 26 August 2015 they argued about parenting arrangements. The father says that after that argument he noticed that X’s passport was no longer on the desk. The next paragraph of the father’s affidavit is significant. The father says that on 27 August 2015 they talked about the children and the father told the mother that he wanted to move back to Australia with the children the following week. He deposes to the mother telling him “you’re not taking the children.” The father’s own evidence makes it very clear that he knew the mother objected to him taking the children. He says the mother would only return on financial terms suitable to her but unacceptable to him. The father makes the point that if the mother had not hidden X’s passport he would have taken her as well. The father sees nothing wrong with his conduct.

14. The father was critical of the mother for commencing proceedings in (country omitted) and then in Melbourne. This ignores the situation that she found herself in. She is perfectly entitled to commence proceedings with respect to the children in (country omitted), which was the place of residence of the family at the time. There is some dispute about whether or not the father avoided service. It is difficult to accept that it would have been hard to serve the father given the regular time he was spending with the children. It is more likely that the mother was not actively pursuing those proceedings. It is clear on the facts of the documents that the mother’s application was filed on 20 May 2015 with a first return date of 4 June 2015. The only reason the mother then commenced proceedings in Australia was because the father had absconded with Y. Indeed the father was attempting to file proceedings in Sydney at the same time. The father intended to initiate Hague Convention proceedings with respect to X. That was at the direction of a Registrar of the Family Court. In my view, based on the material I have seen, that application would have been misguided as on the father’s own evidence he would have difficulty establishing a wrongful retention and habitual residence.

15. The father was also very critical of the mother for contacting police in (country omitted), Melbourne and Sydney. Again, the father entirely ignores the fact that such actions were prompted by his unilateral removal of Y from (country omitted) without the mother’s knowledge or consent.

16. The father’s submissions about his actions in this regard were extraordinary. It is clear that the father had no insight whatsoever into the psychological damage he has caused the children by separating them without notice. The father’s response when this concern was raised is that he would have taken X as well but the mother had hidden her passport. It is clear from the father’s comments that he felt absolutely entitled to take the children to Australia without the mother’s consent. It is very concerning that he maintained this position in the face of criticism of it. One of the real concerns the family consultant expressed was that the father was unable to take responsibility and lacked insight as to the irresponsibility of his actions. Essentially his actions were not child focus. It would be one thing if the father was able to recognise that he should not have undertaken that action but the fact that he does not appear able to raises real concern about his insights and ability to provide for the children’s emotional welfare.

17. It is also significant that the father says X is at risk in the mother’s care because she has threatened self-harm. He also says in his Notice of Risk that the mother has hit X causing welts on her back, but does not give particulars. Surprisingly it states that “[d]ue to obvious limitations” it is not addressed in the interim affidavit “but will be raised further”.

18. If the father was seriously concerned that X was at risk in her mother’s care he would not have left her behind. It is clear from the father’s own evidence that his family are in a position to provide him with financial assistance. He makes this point very clearly. He refers to funds they have provided to assist the parties to purchase the former matrimonial home. His parents have (with convenient timing) given him a $100,000 per annum job and he refers to them offering to pay for private school fees for the children. He also refers to the excellent relationship he has with his parents and that his parents have with the children. Given this evidence it was open to the father to ask his parents to provide him with financial assistance to stay in (country omitted) until he either negotiated a return date to Australia or commenced urgent court proceedings.

19. The tone of the father’s affidavit is concerning and very revealing about the father’s attitude. It refers to the mother’s proposal as being “ridiculous” and “self-serving”. He also refers to the mother as having a “manipulative and controlling personality”. These statements are not evidence.

20. The father’s solicitor made some extraordinary submissions which could not be supported even on his client’s own version of events. Advocates need to represent their client’s interest, but have a duty not to be a mere mouthpiece for their client.

21. The father’s solicitor submitted that, in effect, the mother was seeking permission to relocate on an interim basis. That submission simply cannot be supported on the father’s own evidence. The father removed Y from (country omitted) without the mother’s knowledge or consent and was faced with the mother’s objection. He did it surreptitiously. It is the father who wrongfully removed Y, not the mother. A similar point can be made with respect to the father’s proposed application under the Hague Convention.

22. The father was also critical of the mother for contacting the police and authorities in (country omitted), Melbourne and Sydney. This ignores the fact that the father wrongfully removed Y. A responsible parent would make contact with the authorities in those circumstances. The father raised this in the context of saying it shows that the mother would not foster a relationship between the children and the father. This flies in the face of that the mother’s proposal which is far more generous than the father’s. The father’s solicitor attempted to sidestep the question of his own client’s capacity to foster the relationship between the mother and the children which was an explicit concern for the family consultant.

23. The father’s own submissions only highlight the concerns which were emphasised by the family consultant. Those concerns include the father’s lack of empathy and inability to see that his actions have had a negative psychological impact on both children.  There is no doubt that the children have been harmed by being separated without explanation. The consultant then said that the father said “X may be upset” but blamed the mother for everything. In contrast the mother spoke well of the father as a father. The father was derogatory about the mother and it raised concerns for the family consultant about the father’s capacity to support the children’s relationship with their mother. She was also concerned that the father was placing greater emphasis on the importance of routine over the children being reunited in (country omitted), giving the mother a chance to wrap up her affairs in (country omitted) and return to Sydney with the children. She observed in the interview that the father had nothing positive to say about the mother and that he was “rather childlike”. He was acting from a position of entitlement and talked about Hague Convention proceedings. He was unable to consider other points of view.

24. The mother raised concerns about the father’s excess use of alcohol and says the father would be verbally abusive at the time, which although did not occur daily, was frequent. This is disputed by the father and is not something that I can determine on an interim basis. It will be one of the many issues for the trial.

25. The father claims that the mother threatened suicide. The mother denies this. The mother says that during an argument she said “do I have to hold a gun to my head to get you to listen to me”. The father interpreted that as an intention by the mother to commit suicide. If this is the extent of what the mother said then it appears the father has overreacted.

26. In response to the father’s allegations about the mother’s mental health, the mother tendered without objection the letters from Dr K. The first letter is undated and refers to the mother being referred for assessment of her mood, having gone through a period of “severe upheaval in her marriage, finances and living expenses and circumstances which caused her a great deal of distress”. She was diagnosed with a depressive episode and prescribed Zoloft. The mother did not accept that diagnosis as she felt the assessment was cursory. She refers to the parties continuing with couples counselling. “There is no suicidal ideation, and there was none in the past, despite a misunderstanding when she made a sarcastic comment to her husband about putting a gun to her head.” Dr K formed the impression that the mother had recovered without antidepressants. That letter is undated but was clearly prepared in 2013 as the mother was pregnant at the time. The second letter from Dr K is dated 19 July 2013. The mother told her that while she was not depressed, she was under enormous stress and was exhausted from working nearly 7 days a week and was angry with her husband who remained unemployed and was spending a lot of money. She also expressed concern about what the psychiatrist noted as “what sounds like a significant problem with alcohol.” The mother told the psychiatrist that the husband sometimes drank two bottles of wine and 12 beers in one sitting a couple of times a week. She reported that she felt the husband was immature and had never had to take the consequences for his actions. She reported that when the husband is drunk, he is verbally abusive and has pushed her. The mother felt that she needed the husband’s support when she was pregnant with their second child and that the husband also threatened to prevent her from seeing X if they separated

27. There is a letter from Ms A, psychologist, dated 6 April 2013. The mother reported feeling distressed about difficulties in communicating with her husband, friction with her in-laws, and concern about finances and her pregnancy.

28. The last letter is from Mr K addressed to Dr Q dated 26 December 2013 which says that the mother was well and enjoying motherhood and that Y was thriving being breastfed.

29. There was no doubt on the evidence that the father spent more time with the children than the mother because the mother was working. That does not mean that it is automatically in the children’s best interests to live with the father.

1. Significantly the father does not deny the allegation that the mother made that he sent a text to the mother on 27 August 2015 saying he was staying in a hotel with Y and that he would meet her the next morning at the local cafe. He does not deny that the mother text messaged and emailed that Y was to be returned that night and that he refused to do so. He does not deny the mother’s evidence that she made several attempts to get in contact with him. He also did not deny the paragraph on the mother’s affidavit where she says the father agreed that it was “quite drastic of him to take Y and returned to Australia.” The mother says he told her to get on a plane and offered to pay for her to stay for 4 to 6 weeks in a serviced apartment.

2. It was unrealistic to expect that the mother could simply drop everything when she was employed full-time and return to Australia within hours.

3. There is material in the mother’s affidavit which reflects the previous position of wanting to stay in (country omitted) with the children, presumably on an indefinite basis. There are parts of the father’s affidavit which address that issue which are perfectly appropriate. Given the change in the mother’s position it is not necessary to traverse those issues.

4. The mother sets out the incidences of family violence at paragraphs 46 to 51. She makes it clear in her affidavit that she did not report those incidents to police. The father’s solicitor sought to make a great deal of this. He said in contrast, the father had reported incidents of what he alleges were family violence to authorities. In this regard he refers to his Notice of Risk and refers in contrast to the documents the mother filed in the (country omitted) Court. This submission shows a lack of understanding about the dynamics of family violence. The Court makes it clear that it is unable to determine whether or not there has been family violence in this matter. That is one of the many issues in dispute between the parties which cannot be determined without testing the evidence. However, it is well established that the many victims of family violence do not report it at the time for a variety of reasons including a sense of shame, concern about not being believed and not having any other witnesses. Whilst the father says that the mother did not report her concerns to authorities, it is clear from exhibit A that the mother raised issues of concern about what she describes as the father’s abusive contact and abuse of alcohol in 2013.

5. Annexure I to father’s affidavit is a letter from Mr Moore to a Registrar of the Family Court of Australia dated 9 September 2015, is misleading. It states that the mother wrongfully withheld X within the meaning of the Hague Convention and says that the mother hid her passport despite agreement that the father would return to Australia with the children. This is not what the father’s own evidence states. The evidence of the father in his own material positively contradicts this assertion. In fact the mother may well have been able to successfully bring Hague Convention proceedings against the father for his wrongful removal of Y. It is not necessary to traverse these issues further as there are no Hague Convention proceedings on foot.

6. It is also concerning that the solicitor boldly states that the “mother has a history of threatening self-harm, including when pregnant”. To use the father’s own argument in reverse, the father did not think that the mother was such a risk that he did not feel it was safe enough to leave X in her care.

7. The father seemed to be critical of the mother proposing such significant time between the father and the children. It is a flawed argument to suggest that it is inconsistent with the mother’s allegations against the father. The mother is not putting forward a case that the children are at risk in his care.

8. The term “primary carer” is an often used and is an ill-defined term. Is a parent the primary carer because they can show a greater amount of hours with a child? Not necessarily. If that is enough to earn that label than in many cases the nanny, day care worker or teacher would be the primary carer. This is of course not the reality. Parenting is much more than simply calculating hours and minutes in a child’s presence or vicinity.

9. Neither child was at court so the family consultant could not observe the children with both parents. That would have been a limited and preliminary assessment.

10. What is clear is that both parents claim to be the children’s primary carer. The court accepts that given the fact that the mother was in paid employment and the father was not, it is likely that the father spent more time with the children. It is also clear that the father has at all times had significant assistance from his parents in Australia and from a nanny employed 6 days a week in (country omitted). The mother makes the point in the affidavit she filed in the (nationality omitted) proceeding which is annexed to her affidavit in these proceedings.

11. Both parties gave evidence about their involvement and routine with the children.

12. The Court is not critical of the father for not accepting the terms of the mother’s email dated 1 September 2015 which included financial settlement as well as arrangements for the children. It should also be made clear that the mother’s behaviour is not exemplary. She should have answered the father’s enquiries about the whereabouts of X regardless of the father’s own misconduct.

13. The family consultant observed that the father “…has no insight into the ramification of his action on the children. He expressed no empathy or concern for their welfare or wellbeing. He had no sense of the impact on X being separated from her sibling, other than to suggest that any views X had were as a consequence of things her mother had advised her…Mr Ashton reported to me he took Y because an opportunity presented itself, and he believes he has a closer bond with Y than does Ms Paine…Mr Ashton expresses no insights into – or concern about his actions.  When I pressed him, he admitted X may be upset – that was his quote – but he has no empathy or understanding, and he suggests consistently it’s Ms Paine’s fault all these events have occurred.  Mr Ashton, in contrast to Ms Paine, who speaks well of Mr Ashton as a father – Mr Ashton is derogatory about how Ms Paine manages the children, claiming she cannot support “the children’s best interests.”  She doesn’t discipline the children sufficiently, and she’s considered to be overindulgent with them.  I remind the court that these children are four and two…In interview Mr Ashton, as I said, blamed Ms Paine for the breakdown of the relationship, did not consider she offered anything positive to the children in her role as mother, and defined the children’s needs as being entirely in line with his own views, and that they needed to be with him in Sydney and with his extended family.  My view is that Mr Ashton is unable to consider alternative proposals, and is rather childlike, and unable to sustain any conversation in any arena other than that which he considers relevant.  He acted from a position of entitlement, advising me he was entitled to remove Y from (country omitted), claiming that Ms Paine has then, as a consequence, retained X, and despite the parental consent for the children’s relocation to (country omitted), Mr Ashton stated he wished to initiate Hague Convention proceedings for the return of X to his care.  He’s claiming that the mother is retaining X….” She also said the father referred to the children as “my children” and did not acknowledge the mother’s role as a parent at all.

14. The family consultant expressed real concern about the children living in the father’s care in Sydney because of the “level of denigration and blame-laying” to the mother and whether the father would facilitate the children’s relationship with their mother in any meaningful way.

15. In an interim matter such as this, where the evidence is untested, the views of the family consultant are important. I acknowledge that her evidence is untested as well but she is an expert who does not have an interest in the proceedings. She says there is a particular risk to the children arising from their exposure to the conflict between their parents and their forced separation. Both parents are responsible for the first. The father is solely responsible for the second.

16. The family consultant expressed deep concern about the emotional abuse experienced by both children due to their separation. She says that Y will be very distressed by the extended separation from his mother. X will also be distressed by the separation from the father. Both children will be distressed by their separation from each other. Siblings derive significant emotional support from each other, particularly when dealing with their parent’s separation.

17. The father puts the blame for this situation squarely on the mother. This is unfair and incorrect. The only person who is responsible for the children’s current distress is the father. The father’s inability to acknowledge this causes the Court real concern about the father’s capacity to provide for the children’s emotional and psychological needs. The family consultant also expressed this concern. She opined that the father presented as being unable to separate his own needs from the children’s.

18. The passages in Goode and Goode (2006) FLC 93 - 286 with respect to the legislative pathway are well known and do not need to be repeated here.

19. I have referred to the parties proposals and will not repeat them.

20. The children have a meaningful relationship with both their parents. The risk issues of most concern, which will need to be explored further are the high conflict between the parties, the allegations about the father’s drinking and any alleged family violence. It may be worth exploring both parties’ mental states if the father continues to pursue that line with respect to the mother. These issues raised before the court are not at such a level so as to mean the children are at unacceptable risk in either parent’s care.

21. Given the children’s ages, their views are not a relevant factor. S.60CC(3)(c) and (ca) are not relevant at this stage.

22. The impact of the separation of the children from each other and then the other parent has already been addressed. It is a significant factor.

23. The practical difficulty and expense of the children spending time with their parents has also been canvassed. There is a short-term difficulty which the mother’s proposal addresses as best as it can be at this stage. Along with s.60CC(3)(d) of the Family Law Act 1975 (Cth) the most significant s.60CC factors are s.60CC(3)(f) and (i). The father’s capacity to provide for the children’s emotional needs and his attitude to the children and the responsibilities of parenthood are most concerning for reasons canvassed elsewhere.

24. At this interim stage I do not propose to make an order about parental responsibility. No submissions were made in relation to this issue.

25. The mother proposes that upon her return to Sydney the children spend 3 nights a week with their father. I am concerned about that arrangement because of the toxicity of the father’s attitude and lack of insight. I will order that he spend two nights a week with the children. Times are not specified as it will depend on the mother’s circumstances upon her return. Both parents need weekend time with the children.

26. I will order the mother to return to Sydney with the children by 15 December 2015. These are interim arrangements. As the parties and the children will be living in Sydney in the near future I will transfer the matter to the Sydney registry of the Federal Circuit Court. The father did seek to transfer the matter to the Sydney registry of the Family Court. That was when he anticipated filing Hague Convention proceedings. He also referred to wanting to call 15 witnesses. He does not say who they are and it is difficult to see how that number of witnesses would assist in a case like this even after property issues are joined.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  25 September 2015