PERKINS & CAN

[2021] FCCA 1397

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERKINS & CAN [2021] FCCA 1397

Catchwords:
FAMILY LAW – Parenting – interim hearing – one child aged 4 – risk issues – whether the child should be living in Sydney or in City B in the short term – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Applicant: MR PERKINS

Respondent: MS CAN

File Number: NCC 1455 of 2021

Judgment of: Judge Betts

Hearing date: 12 May 2021

Date of Last Submission: 12 May 2021

Delivered at: Newcastle

Delivered on: 4 June 2021

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Mullane & Lindsay

Counsel for the Respondent: Ms Lawson

Solicitors for the Respondent: Mcqiu Lawyers

ORDERS

1. That the child, X born in 2016 “the child”, live with the Mother.

2. That the child spend time with the Father at times agreed to by the parents, or in the absence of agreement, as follows:

   (a)Each alternate weekend commencing 14 May 2021 from 5.00pm on Friday until 5.00pm on Sunday, with the Mother to deliver the child to the Father’s residence at the commencement of the time and the Father to deliver the child to the Mother at the Mother’s residence at the conclusion of the time.

   (b)Each alternate weekend commencing 21 May 2021 from 5.00pm Friday until 5.00pm Saturday, with the Mother to deliver the child to the Father’s residence at the commencement of the time and the Father to deliver the child to the Mother at the Mother’s residence at the conclusion of the time.

   (c)For Father’s Day from 5.00pm on the Saturday before Father’s Day until 5.00pm on Father’s Day, with the Father to collect the child from the Mother at the Mother’s residence at the commencement of the time and the Mother to collect the child from the Father’s residence at the conclusion of the time.

   (d)At all other times as agreed in writing between the parents, with arrangements for changeover to be agreed between the parents.

3. Despite anything in the above orders, the child’s time with the Father is suspended at the following times:

   (a)For Chinese New Year from 3.00pm until 9.00am the following day, with the Mother to collect the child from the Father’s residence at the commencement of the time and the Mother to return the child to the Father’s residence at the conclusion of the time.

4. That each of the parents be and hereby is restrained from leaving the child in the sole care of the maternal grandparents.

5. That each parent facilitate the reasonable and uninterrupted communication of the other parent with the child by means of telephone, email or internet-based communication during the times the child lives with or spends time with the first parent.

6. On 15 September 2021 at a time to be advised, the parties are to attend a Child Inclusive Conference with a Family Consultant pursuant to section 11F(1) of the Family Law Act 1975.

7. The parties are advised that if a person who is ordered to attend an appointment with a Family Consultant under section 11F fails to comply with:

   (a)The Order made by the Court; or

   (b)Any instruction the consultant gives to the person;

   the consultant must report the failure to the Court.

8. The matter is adjourned for directions before Judge Betts on 6 October 2021 at 9.30am.

9. The Father has liberty to re-apply in the event of any issue arising having regard to the Notation.

10. That today’s reasons for judgment be provided in writing when they are available.

NOTATION:

(A)The reasons were delivered at short notice; the Mother’s legal representatives did not appear.  Subsequent to delivering reasons Ms John advised that the Father is now in employment and that his hours of work are different and he is available on Mondays and Tuesdays to care for the child.  The Court expects that the parties will negotiate to accommodate the Father’s work arrangements and provide the same amount of time with him provided for in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1455 of 2021

MR PERKINS

Applicant

And

MS CAN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript so as to make them easier to read.

Introduction:

1. These are parenting proceedings concerning a young child, X born in 2016.  I will call her “X” in these reasons. 

2. X is a bi-racial child.  Her father Mr Perkins is Australian; her mother Ms Can is Chinese. 

3. The parties apparently met on a dating site in 2015.  They married in 2016 and ultimately separated in March of 2021.  X is their only child.

4. The debate before me is what ought to happen to X in the short term, and most significantly, whether she should be living in Sydney or whether she should be living in City B. 

5. I propose to deliver short form reasons in accordance with section 69ZL of the Family Law Act (“the Act”).

The hearing before me:

1. The matter proceeded to interim hearing before me on 12 May 2021, at which time I had the benefit of hearing submissions from Ms John, the solicitor for the father, and from Ms Lawson, counsel for the mother.

2. The parties relied upon various documents, all of which I have considered for the purposes of today’s decision. 

3. The father in particular relied upon his Affidavit and Notice of Risk.  The mother relied upon her Affidavit, the Affidavit of her mother and the Affidavit of her father. 

4. The parties tendered various exhibits. These included what was an annexure to the father’s affidavit, but was effectively treated as an exhibit, namely some video footage taken by the father in 2018 and 2019 showing the home of the parties at Suburb C in Sydney.

Consideration of the evidence:

1. By way of brief overview, the parties lived in Sydney consistently up until around March of 2020, when they relocated to City B.  For the most part, the parties lived with the maternal grandparents, who have been a significant financial and practical support to them and also to X on the evidence before me. 

2. In 2017, they all moved into the Suburb C property.  The maternal grandparents lived downstairs while the mother, father and X lived upstairs.

3. X has been attending a daycare centre at Suburb C, “D Day Care”, since she was nine (9) months old. 

4. In March of 2020, the parties moved to City B, where they stayed for a few months.  This was, essentially, the father’s idea.  The mother went along with it.  Apparently, he was concerned about the COVID risk in Sydney, which is understandable I suppose. 

5. The parties stayed living in City B for a few months before returning again to the Suburb C property.

6. It seems that X had some difficulties with her behaviour.  These were the subject of some occupational therapy and speech therapy support, as well as some additional teaching resources made available to her from late 2020, which seem to have resulted in some improvement on the evidence before me. 

7. The parties are at odds about a great many aspects of their relationship, and it is not possible or necessary for me to make findings about a great number of those.  This is an interim hearing, and the Court’s capacity to make findings is very limited indeed. 

8. It suffices to observe that the father complains that while the parties were living in the Sydney region, that the maternal grandparents were not sufficiently attuned to the child’s needs, that they engaged in various behaviours towards the child that caused him concern, and that their house was, in large part, a “pigsty” that was not really an appropriate place for X to live.

9. In addition to keeping an untidy home, he also accuses the grandparents of transporting the child in a car without a proper child restraint, tying her legs together to straighten her shins when she was an infant, trying to shave her head, tweaking her nipples when she was a baby so that they would be permanently erect, force-feeding her food she did not want to eat, and generally invading her personal space.  The father also accuses the mother of kowtowing to her parents and being beholden to them and being unwilling to confront them about their behaviours.

10. The father accuses the mother of not being sufficiently involved in the child’s life, or perhaps to put it another way, he asserts that he was the primary carer and that the mother was interested in electronic devices and otherwise distracted so that she was much less involved in X’s day-to-day care. 

11. The mother and her parents deny the father’s allegations.  The mother suggests in her evidence that she was X’s primary carer, not the father.    They paint the father as somewhat lazy and indolent, quite willing to accept financial handouts from her family and generally not being of a mind to support himself financially or to seek employment. 

12. They paint him as being uninterested in obtaining any serious employment and accuse him of not being sufficiently financially motivated to support himself, the mother and their child. 

13. It is common ground that the maternal grandparents have been very financially generous to these parties on anyone’s view.  They have covered the parties’ wedding expenses, rental expenses and numerous other things, including giving the father a car, a motorcycle, etc.

14. There is clearly a cultural tension between the parties as well.  The mother says that the father does not respect Chinese culture or her family, and they accuse him of having cut or severed their Chinese cable television.  I note that the father is an IT expert; he probably has the capacity to do such things.  But I make no positive finding about it. 

15. For his part, the father suggests that the maternal grandparents did not respect him, and that they, perhaps more importantly, did not respect the child.

16. Whatever the true position may be, it is clear that in January of this year the parties decided to trial – or on the father’s case, to definitely – move back to City B to live.  By this time, the maternal grandparents had purchased a business which they had acquired sometime around the middle of 2019, and the mother was apparently working in that business from Tuesdays to Saturdays.  Her parents invested some $1.5 million into this business.  Although they are wealthy, this is still, it seems to me, a significant financial investment by the maternal grandparents.

17. The mother’s case is that she had to stay in Sydney and that she was going to trial travelling between Sydney and City B and see if she was able to appropriately manage her work situation.  She certainly did not want to leave the business, which is her employment.  The father, I should add, is not employed, and has not himself been in paid employment since around mid-2019.  I should also record here that although the mother’s parents accuse the father of not being motivated to work, his case is that he quit work because of concerns about how the child was being cared for at home.

18. In other words, the father paints the picture that he had to stop working in order to look after the child, which they deny. 

19. In any event, the mother’s case is that the City B move did not work out for them.  She was only able to visit the father and X on a handful of occasions, and the father was not interested in bringing X back to see her in Sydney on the weekends. 

20. The father’s case is that the move to City B was intended to be permanent and that the maternal family were meant to provide them with more support than they did; that they effectively “pulled the rug out” from under the parties, leaving him high and dry.

21. After the parties separated, a separation the mother had instigated and which seems to have come as a surprise to the father, the father initially kept the child in the City B region with him.  He allowed the mother to visit the child on one occasion in April 2021.  He did not trust her; it was a daytime visit only.  His lack of trust for her was perhaps understandable in light of what followed, but equally, it is clear enough that he was controlling the situation as well.

22. Apparently at his mother’s instigation, the father ultimately decided to give the mother the benefit of the doubt and let the child travel to her in Sydney for some overnight time.  This occurred on 23 April. 

23. The mother then retained the child, and she has been living with the mother ever since. 

24. The parties have had some mediation; it was unsuccessful in that they were not able to reach any agreement. 

25. The father’s case is that he was the primary carer of X; that although the relocation to City B is fairly recent, it was a relocation that was agreed to in the context of an intact relationship.  He contends that he is better placed to care for the child, as well as pointing to risks and concerns in relation to the maternal household.

26. The mother’s case is that she was the primary carer of X, assisted by her family, that her family played a significant role in X’s life, and that the stable environment for the child is to return back to the Sydney region where she presently is. 

27. It is not possible for me to make a finding about whether it was a long-term decision by the parties to relocate to City B.  I note that there is a dispute on the facts about that matter.  Certainly, the move seems to have been totally impractical on any reasonable view, given the travel that would be involved if the mother stayed working in the business.

28. But stranger things are said in this Court, and I really have no idea whether it was intended to be a permanent move.  I do, however, accept the submission made by Ms John that the move did occur while the parties were still together.  It was not a unilateral relocation, if I can use that term.  And it also seems clear enough that the father was “blindsided” by the separation. 

29. What then should I do about young X between now and when the matter can come back before the Court?

Applying the law:

1. I am obliged to apply the provisions of Part VII of the Act in terms of arriving at a best interests decision for X.

2. It is not really possible for me to make any detailed findings about the matter, given the disputed facts.  There are a great many things that are in issue, most of which do not really matter much at an interim hearing, although at a final hearing, they may assume more significance. 

3. In terms of the section 60CC considerations, I observe the following things.

4. Firstly, there would be a benefit to the child having a meaningful relationship with both parents.  In my view, the child does have a meaningful relationship with both parents, and that needs to continue.  Although the father initially sought an order that the mother’s time be supervised – which was overkill, frankly – he has sensibly amended his position and no longer seeks supervision.  Equally, the mother does not seek that his time be supervised either.

5. The child does need to be protected from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.  The mother makes no allegations of risk about the father, save inferentially that in her affidavit she says, as indeed her parents say, that the father was at times verbally abusive towards the mother and disrespectful of her culture.

6. The mother also asserts that the father’s sister-in-law had in fact driven her and the child back to Sydney in 2020 after their brief stint in City B precisely because of conflict and argument between the two of them and allegedly the need to keep the mother and child safe.

7. I am not able to make a finding about that.  The father has not addressed the matter in his material, although it is common ground that they only stayed in City B for a few months in 2020. 

8. Certainly, the mother says there was tension and conflict between them, and this seems likely given that their relationship has been deteriorating in recent years.  In any event, there is no real issue of family violence, abuse or neglect raised by the mother against the father.

9. The father raises issues of abuse in relation to the mother, or more particularly, her family, including alleged neglect.  I have looked at the evidence before me, including the video and including the photographs that have been provided to me as exhibits.  Certainly, on any view, the maternal home at Suburb C has been a “pigsty” at different times.  I think that can legitimately be said.  There is no use sugar-coating it. 

10. That said, the parties lived in that home for a number of years, and the cause of the “pigsty” is very much in issue.

11. For instance, although the father paints the picture that the house had dog faeces in it, the mother says that it was the father who insisted that the dogs be inside the house, and that he then expected her to clean it up, as he was reluctant to do so or certainly less involved in doing so. 

12. The mother and her family suggest that the father is depressed and that he ought to have taken more responsibility for the cleanliness of the house, given that he was the one at home for most of the time, particularly when he was unemployed.  And to be fair, there is some merit in that as well.  The mother points to the condition of the father’s home office at Suburb C, which is itself rather messy, suggesting that it was an example of his own standard of cleanliness.

13. Equally, it is a little bit rich for the mother to say that she was the primary carer but at the same time to say that the father should have kept a clean house given that he was the one primarily at home. 

14. As I say, there are a number of disputed facts that need to be resolved, and it is beyond my capacity to resolve them.  The fact that these parties do not even agree who was the primary carer is a sad reflection of what appears to be a high conflict case. 

15. That said, I accept that there is some force in what Ms Lawson submits, namely that the daycare centre has probably been a primary if not the primary carer for the child, because she has been going there since she was nine months old and she had been full-time there since December 2018, apart from her relatively brief attendances at day care in City B. 

16. I have noted the allegations made by the father, and I have considered the evidence, and I simply do not consider that they rise to the level of “unacceptable risk” in this case in terms of either requiring that the maternal grandparents not be left unsupervised with the child or in any way restricting the time that might be spent in the household of the grandparents and the mother.  It is clear enough from the photographs that the house at Suburb C has been cleaned up to a significant extent. 

17. I suspect, without making a finding, that both parties have contributed to the mess at Suburb C, quite frankly.  But I do not see it as giving rise to unacceptable risk.

18. Nor do I see any allegation that gives rise to unacceptable risk in terms of the maternal grandparents’ alleged conduct in relation to the child, particularly noting that their denials and noting that it seems that the maternal family have had a significant involvement in this child’s life. 

19. It seems to me that the living arrangements between this family have been somewhat bizarre at times.  The maternal family say that the father effectively sat around upstairs at Suburb C, getting out of bed late and that the grandmother would be cooking meals for him downstairs and texting him to tell him when the food was ready.  This is consistent with what they say about him, namely that he was depressed and not doing much. 

20. The father complains that the maternal family would cook meals that had bugs in them.  Who knows what the truth is, but the submission was made to me that the father was leaving the meals to sit there, and it would not be surprising for bugs to end up in them. 

21. As I say, there are a great many disputed facts, and it seems to me there is a great deal of tension and distrust between these parties. In any event, I do not consider that any serious risk arises and certainly no unacceptable risk. 

1. Turning to the additional considerations in section 60CC(3), the child is too young to express any views. 

2. She has, it seems, a loving relationship with her father, also with paternal family members who live in the area, including his mother and his sister and other family members who have had an involvement in the child’s life.

3. She has friends at the learning centre at City B in which the father enrolled her. 

4. She has a loving relationship with the mother, the maternal grandparents, and no doubt she has relationships with her friends in daycare at Sydney, who she has known for quite some time. 

5. The bulk of the child’s “close connections”, if I can use that expression is in Sydney - namely the mother and the maternal grandparents.  They have had a much more active and significant role in X’s life than the paternal family.

6. And I do not say that to be in any way critical of the paternal family, about whom I have no concerns.  The paternal grandmother in particular seems to have tried to be a peacemaker in this case, at least initially, and she was the one who encouraged the father to send the child to Sydney when the mother then kept her.  I suspect that the paternal family are probably going to be helpful in assisting these parties.  But the reality is that their involvement in the child’s life has been much less than the maternal family’s has.

7. Each parent has participated in making decisions about the child, although there has been clearly been some conflict between them.  Each has been actively involved. 

8. The mother is working to maintain the child.  The father is not presently working, but I do not criticise him for that.  He says he is looking for employment, and I have no reason to doubt that. 

9. The child has been uprooted from Sydney where she had lived consistently through her life, save for the brief period in City B in 2020 and again this year.

10. The father no doubt did what he could to settle the child in the City B area in 2021, and I am not in any way critical of anything he has done there.  He seems to have taken proper steps to get the child into daycare and to facilitate X’s relationships with his family, although there is a question mark about whether he was facilitating X’s relationship with the mother to the extent that he could have. 

11. Equally, his case is that the mother did not come to City B, presumably because she was not interested or sufficiently involved with X. 

12. In any event, I accept that the father made appropriate steps in terms of the child’s basic care arrangements in City B. 

13. The question of change of circumstances is always relevant in a case involving a child being moved geographically from where they have been living.  The bulk of the child’s life has been lived in Sydney.  That is inescapable.  She has a substantial connection to the daycare centre, “D Day Care” at Suburb C.  She has a much lesser connection to the daycare in City B, “E Day Care”.

14. She is immersed, to some extent, in her Chinese culture in Sydney that she does not get in City B, or certainly nowhere near to the same extent.

15. That said, she is not used to living without her father as a constant presence, nor is she really used to living with the mother absent from her life as a constant presence, save for a short period this year. 

16. There are practical difficulties and expenses in this case, which are unavoidable given that the parties live a few hours apart.  Notably, the maternal family offered to provide the father with accommodation in the Sydney region for a period of six months if he was to return there to live.  This is further evidence of their financial willingness to support the father, who they say they regard as a son.

17. The mother’s proposed orders, which are exhibit “C”, contain a notation that if the father relocated back to Sydney, that for 6 months the maternal grandfather would undertake to pay the rental payments for him for a two-bedroom apartment, within a 10 kilometre radius of the mother’s home, as well as paying him $300 per week towards his living expenses.

18. That is extremely generous offer, in my view.  That said, I can well understand why the father, who feels somewhat estranged from the maternal family and does not want to live in Sydney, does not want to accept it.  He prefers to stay in City B, in the property at Suburb F, that he has owned since before he commenced a relationship with the mother, although I note that he has a mortgage and some financial stress and no employment, and these are matters for him to weigh up in terms of the future.

19. But practical difficulties and expenses are clearly relevant in a situation where the parties are, at least in accordance with their stated intentions, living a couple of hours apart. 

20. There is no suggestion that the mother will move to City B, and frankly, it would be difficult to imagine how she could do so, without walking away from a $1.5 million investment that her family have made for her (in the business), and then herself having no employment. 

21. In terms of the capacity and attitudes of the parents, it seems to me that each parent has a basic capacity to care for the child, and it seems to me that each of them loves the child and takes their attitude to parenting seriously.

22. The father accuses the mother of perhaps having post-natal depression.  The mother accuses the father of being depressed.  These are questions for another day, but I’m satisfied that there is a basic capacity, in each parent, to provide for the care of the child. 

23. The child is only young.  She is bilingual, or attempting certainly to learn Mandarin.  It has been a source of some tension between the parties, on the evidence before me, as to whether the child’s use of the Mandarin language should be encouraged or not.

24. But certainly, X is a child who has both a Chinese and an Australian heritage that she is entitled to explore and to be immersed in. 

25. She has had some difficulties with her behaviour, and there is no doubt that she has required additional assistance at the daycare centre at Suburb C.  The question is - what is the cause for that? 

26. The father broadly blames X’s behaviour on the difficult home environment with the maternal family.  The mother blames it on the fact that she, X and the father lived away from the maternal family for a few months in City B in 2020 – as she says that X’s behaviours at daycare started after they returned to Sydney.

27. It is not possible for me to make a definite finding about the cause of X’s behavioural issues.  There is some evidence supporting the mother’s contention (namely the timing of her behaviours), but equally, it seems to me, that the child’s problems may have run a little deeper and over a little longer period than what I am being told. 

28. There are no family violence allegations, save inferentially in relation to the mother’s complaints of the father bullying or yelling at her on occasion.  I do not consider that family violence is a particularly significant, or indeed, a significant feature in this case, which favourably distinguishes it from a great many cases in this court.

29. It is unavoidable that further proceedings will be necessary.  This case is not going away any time soon. 

Conclusion & Orders:

1. What I have to do is strike a balance in the interim, in terms of all of the section 60CC considerations. 

2. In my view, the weight of the evidence supports the child remaining in the Sydney area.  The bulk of her life has been lived there.  The bulk of her family connection and support, in terms of the mother and the maternal grandparents, are in Sydney.  It seems to me that in the interim, the child should remain living with the mother.

3. However, the father should be spending regular quality time with her.  I have already made orders by consent, which place the child on the watch list, to prevent her leaving Australia, and I cannot see that order being varied any time soon.  I have also made various other orders, concerning the mechanics of how the child is to be cared for, which were all made by consent on 12 May 2021, at the interim hearing. 

4. In terms of the time that ought to occur between the father and the child, I propose to adopt the father’s orders that are set out in exhibit “”, tendered by Ms John, which is orders number 6 through to number 10 of exhibit “B”.

5. The father can effectively spend time with the child each weekend – one weekend from 5 pm Friday to 5 pm Sunday and the other weekend from 5 pm Friday until 5 pm Saturday.  In my view, this is the best balance that can be struck at this time, given the child’s young age and the need for her to have as much stability as possible. 

6. The orders provide for there to be reasonable and uninterrupted communication by telephone, email or internet. 

7. If the father were to move back to the Sydney region, I would think that it is highly likely that I would make an order for equal time, but that is not before me at the moment.  I merely observe it, in case the father has a change of heart.  I do not expect him to, but he might. 

8. This is, in my view, the best outcome in the short term for this child, in what is a somewhat unfortunate case, and in which both parents have much to offer this young child.  The tyranny of distance is the major problem in this case, and I am mindful of the fact that the child will have a significant amount of time in a car, travelling, on these orders.

9. I will order a child dispute conference 15 September, Ms John, at a time to be advised, and I will adjourn the proceeding to 6 October 2021 at 9.30 am. 

10. Given the absence of the mother and her legal representative for today’s judgment, I will order that my reasons be taken out in writing, so they can at least read what I have said. 

11. I will simply add to my reasons that I have contemplated transferring the proceeding to Sydney, but I do not intend to do so at this stage.  I very much see the question of the child’s long-term care as an open issue for another day, and this is intended as an interim order only, and I want both parties to understand that.  If the father does seek to remain in City B long-term and for the child to live with him, then he will have every opportunity to have his day in court and to argue his case.

12. For these reasons I make the orders which are set out at the commencement.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Betts

Associate: 

Date: 22 June 2021