PRICE & PRICE
[2015] FCCA 701
•19 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRICE & PRICE | [2015] FCCA 701 |
| Catchwords: FAMILY LAW – Parenting – interim relocation – serious allegations by each party – mental health, alcohol drug use and abuse, sexual abuse, violence – how to deal with allegations of domestic violence in an interim application – consideration of what corroboration there might be and the consequences for each party if some initial findings were made – rebuttal of presumption of equal shared parental responsibility – consideration of and balance of “Primary considerations”. |
| Legislation: Family Law Act 1975 (Cth), ss.4A, 60CA, 60CC, 61D, 61DA(2), (2A) and (3), 65DAA Federal Circuit Court Rules 2001, r.8 |
| C and S [1998] FamCA 66 Morgan & Miles (2007) FLC 93-343 Goode and Goode (2006) FLC 93-286 Cowling v Cowling (1998) FLC 92-801 Deiter& Deiter [2011] FamCAFC 82 Jamal & Maalouf [2008] FMCAfam 1406 |
| Applicant: | MR PRICE |
| Respondent: | MS PRICE |
| File Number: | TVC 30 of 2015 |
| Judgment of: | Judge Coker |
| Hearing date: | 18 February 2015 |
| Date of Last Submission: | 18 February 2015 |
| Delivered at: | Townsville |
| Delivered on: | 19 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Honchin |
| Solicitors for the Applicant: | Gun Lawyers |
| Counsel for the Respondent: | Mr Fellows |
| Solicitors for the Respondent: | MacDonnells Lawyers |
ORDERS UNTIL FURTHER ORDER
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2010 and Y born (omitted) 2012, subject to the communication and notification of such decisions to the Father, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health; and
(d)a child’s name.
That notwithstanding order 1 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the children when they are spending time with him.
That the children live with the Mother in (omitted), Victoria.
That the Father spend time with the children in (omitted), Victoria at all reasonable times as may be agreed between the parties and in particular, between 8:00am and 6:00pm each day for up to seven (7) consecutive days, with no less than twenty-one (21) days between each period of time spent by the Father with the children.
That the Father have telephone communication with the children at all reasonable times and in particular, at 5:30pm (Queensland time) each day, with the Father to be responsible for making the call and the Mother to ensure that the children are available to receive the telephone call in a quiet and private environment.
That the costs be reserved and the matter be certified for counsel.
That pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001 the venue for the hearing of the application filed on 13 January 2015 be changed to the Federal Circuit Court of Australia in Melbourne for mention at 9:45am on 18 May 2015.
IT IS NOTED that publication of this judgment under the pseudonym Price & Price is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT TOWNSVILLE |
TVC 30 of 2015
| MR PRICE |
Applicant
And
| MS PRICE |
Respondent
REASONS FOR JUDGMENT
On 13 January 2015 Mr Price, whom I shall refer to as the father, filed an urgent application in this Court seeking orders in respect of the parenting of two children, X, born (omitted) 2010, and Y, born (omitted) 2012. The children are the children of the father and Ms Price, whom I shall refer to as the mother.
The matter was returnable initially on 28 January 2015. On that day the mother had filed a response in relation to the proceedings but, through counsel appearing on her behalf by telephone, an adjournment was sought for the purposes particularly of obtaining further information, filing further documentation and, specifically, relating to the issue of further subpoena by her, in relation to numerous concerns that she says gave rise to her departure from Queensland to Victoria.
The father’s initiating application sought orders on an interim basis in these terms:
(1)That the Marshal of the court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover the children, X born (omitted) 2010 and Y born (omitted) 2012, and deliver the children to the father, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe the children may be found;
(2)That the children live with the father;
(3)That an injunction issue and the mother be hereby restrained from again removing the children from (omitted) without the father’s consent; and
(4)That the children spend time with the mother as this Honourable Court deems fit.
The mother’s response to that application was filed on 27 January 2015, the day immediately preceding the return. On an interim basis she sought orders of a very succinct nature also. The proposals in relation to parenting were as follows:
(1)That the matter be transferred to the Federal Circuit Court of Australia in Melbourne, Victoria;
(2)That the children live with the mother for such time as the Court deems fit; and
(3)Seek leave to file other material.
Property issues were also raised, though they have not to any degree at all been the subject of debate. The orders proposed by her explain why that would be the case. They were in these terms:
(1)That the wife be excused from particularising her claim until such time as the husband has made full and frank financial disclosure; and
(2)Such further and other orders as determined by this Honourable Court.
To be frank, I have no idea what the property application means. There is no indication whatsoever of what might be proposed but, no doubt, that will be more appropriately dealt with at a later time. It seems to me that you cannot raise a property application and say, “I can’t tell you what it is, but I just want something,” and then the other party has to do something for me. It is not the way it works, but I leave that to one side.
The mother then, on 13 February 2015, filed an amended response which provided far more significant particularity in relation to the issues of parenting, and also amended the proposals in relation to property. I shall not repeat what is detailed in relation to property because it at least now seeks a property distribution as determined by the Court, though that, of course, with respect, still falls far short of what is required with regard to particularity being provided.
More specifically, however, the orders that were proposed by the mother in respect of parenting can be summarised as follows on an interim basis:
·That the orders of 28 January 2015 be discharged;
·That the children live with the mother in (omitted), Victoria;
·That the mother have sole parental responsibility in relation to major long-term issues relating to the children provided, however, that unless it were a situation of emergency, she would provide information to the father in relation to decisions to be made with regard to the children’s education, religion and cultural upbringing and health;
·That the parent in whose care the children are in from time to time have parental responsibility for day-to-day decisions;
·That the children communicate with the father by telephone at 5.30 pm Queensland time each day and that the mother be responsible for the calls to be made, ensuring that the children are available to receive the telephone call.
It appears to me that there must be an error there as it proposes that the mother be responsible for the call, and then for the mother to ensure the children are available to receive the call. In any event, it is not particularly relevant in the ultimate determination of this matter.
·For the father to spend time with the children, though it was submitted that it should be in the presence of or supervised either by his mother or stepfather, the paternal grandmother and paternal step-grandfather and that if that were not able to occur, then that the father’s time with the children be facilitated at an appropriate relationship centre, such as Relationships Australia or Centacare for a period of four hours per day. The mother proposed that any time spent by the father be for a period of up to seven consecutive days.
Thereafter, the mother sought a number of orders with regard to the father and controls she says were necessarily required to be placed upon him. They included that the father check into and complete an Alcoholics Anonymous course and show proof of one year of sobriety. I struggle to understand exactly how that can be done, but in any event, it is the order that is sought.
Additionally, it is sought that an injunction issue that restrains the father from drinking any alcohol in the presence of the children or from being affected by alcohol in any way whilst spending time or communicating with the children. It is, of course, in conflict with the absolute preclusion that appears to be sought in the preceding order but, again, I digress.
The orders then proposed are that an injunction issue restraining the father from exposing the children to any internet, electronic, telephone or television communication which would not be considered age appropriate and thereafter that there be a joint injunction preventing either party from denigrating the other party in front of or within the hearing of the children or allowing others to do so. An order is then sought with regard to the father being liable to pay the mother’s legal costs of the proceedings.
The mother’s proposals in relation to interim parenting are, therefore, far more extensively outlined in relation to the situation that is now existing. The father’s proposals remain unchanged, at least notionally, from what is included in the interim application which is simply the children spend time with the mother as the court deems fit. It is clear from his more recent affidavit material, however, that it is proposed by the father there be the possibility or consideration of the mother returning to (omitted) and for her to be primarily responsible for the care of the children, but with him having obviously the more ready opportunity for time to be spent with the children.
The alternative would appear to be similar to what is suggested by the mother, at least insofar as time being made available, though it is not specifically clear what is proposed other than that the children live with the father. One presumes if the mother does not return to the (omitted) area, but there is nothing specific as to what might then be proposed with regard to the mother’s opportunity to spend time with the children, were she to continue living in (omitted).
I provide that fairly comprehensive outline in relation to this matter because it is, if anything, indicative of the haste with which everything has occurred in relation to this matter. It is only about five weeks since the initial application was filed and, in fact, the parties have only been separated since mid-December 2014. In other words, only for about eight or nine weeks.
I made reference earlier in these reasons to the first appearance on 28 January 2015 and, at that time, agreed that an adjournment should be provided, however, specifically noted that there should be arrangements in place for the father to have the opportunity to both communicate with X and Y as well as to spend time with the children. The orders in that regard specifically provided:
(1)That the father communicate by telephone with the children, X and Y at 5.30pm Queensland time each day and the mother be responsible for making the call and ensuring the children are available to receive the telephone call in a private and quiet environment
Noting the wording of that, I should obviously record that the order sought by the mother reflects exactly that order and is not, in my view, an appropriate term for the order.
Additionally, the order provided for the father to have the opportunity to attend in (omitted) in Victoria and to spend time with the children between the hours of 8am and 6pm, for a period of up to seven consecutive days. The father, at least in part in conjunction with his mother and stepfather, arranged to spend time with the children and travelled, as I understand it, on 30 January 2015 to Melbourne and took the opportunity to spend time with the children between 31 January and 6 February 2015.
It was the case, however, that the father was only accompanied by his mother and stepfather until, I believe, 4 February 2015 but that he also continued to have the opportunity to spend time with the children for a period of two further days to make the totality of seven days provided pursuant to the orders.
Each party generally suggests that the time went satisfactorily insofar as the children’s interaction with the father. Both, however, interestingly, make claims that the children made disclosures to them, generally to the effect that they should not be telling the other parent what has occurred, either in the mother’s household or on occasions when the children were spending time with the father. Of course, it is impossible and it would be improper for me to make findings in relation to that particular aspect of that matter or, in fact, so much of what has arisen in relation to these proceedings to date. But what is clear is that other than the unfortunate gripes that sometimes arise, particularly shortly after separation, the parents do appreciate the importance of the children’s relationship with each of the other parents being facilitated and developed.
It is noteworthy, however, that whilst the mother suggests that the time generally went satisfactorily, her concerns in relation to the father’s capacity to provide for and meet the needs for the children remain, such that she suggests, as indicated in the amended response, that time spent by the father with the children should either be in the presence of his mother and stepfather or in some form of specifically organised parental supervision. I shall come to that aspect of the matter a little later in these reasons.
What is clear is that there is a significant dispute between the parties. It has led to the mother decamping from (omitted) and travelling to family in (omitted), Victoria, and that the father seeks the return of the children to the place in which they were originally living.
It is, like all matters of this nature, extremely difficult, particularly when there is untested evidence. The fact is here that each parent makes serious allegations in relation to the other. To summarise them, if you like, on the part of the father, there are concerns that the mother’s capacity to parent the children is affected by issues with regard to her mental health. It is suggested that she suffers from anxiety, depression and other aspects of mental health such that there is a concern as to her capacity to meet and to provide for the needs of the children. There are also allegations raised with regard to the mother’s parenting of the children, including severe and excessive disciplining of the children and concerns that she has made threats to kill the children.
It is interesting, with respect, that such allegations should be made and yet what can be inferred from the material is that the father still generally proposes that the children should live with the mother should she return to (omitted). It is one of the many controversies or inconsistencies that arise in relation to this matter.
The mother raises concerns in relation to the father also. They relate to a number of the most serious of offences that could be contemplated, child abuse, neglect, rape within marriage and, in more recent times, a predilection towards terrorism or terrorist activities. Of course, there will need to be very significant inquiry in relation to such matters and there is obviously much that will need to be more fully and comprehensively addressed before findings can be made.
What that, of course, leaves the Court with is a most difficult decision, particularly when it involves issues and aspects of a possible relocation by the mother or, at least, the authorisation for what has already occurred to continue and the obvious consequence of that being that the parties are many thousands of kilometres apart and, accordingly, the opportunity for the children’s right to a meaningful relationship with both parents, particularly, in this instance, the father, being significantly curtailed. The alternative, of course, is just as serious and significant if, for example, orders were to be made as sought by the father for the children to be returned to (omitted) and for whatever reason the mother were not to return along with them. It would still give rise to a significant concern with regard to the children’s right to a meaningful relationship with both of their parents.
I was referred obviously to the statute and the case law in relation to this matter. A little differently to most matters, in my assessment, it is important that there be consideration of the law and of previously decided cases before it can properly then be applied to the circumstances that exist in relation to these parties.
In that respect, for example, it is noteworthy that relocation cases have been for an incredibly lengthy period of time, probably since relationships started to break down in the dim, dark past, a difficult concept and a difficult issue for courts to deal with. I am mindful of the decision of the Full Court in C and S (1998) FamCA 66 where Warnick J giving the lead decision made comment about matters with regard to relocation. He said:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significant alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.
In other words, his Honour was concerned with the significant effect that arises where what has previously been in place, in this instance the opportunity for significant interaction between the children and the father, being curtailed as a result of relocation and therefore a concern that it should not occur, except in circumstances of risk or emergency, at least until full consideration could be given to the evidentiary basis upon which it would be found that relocation was in the best interests of the children.
In more recent times, and noting, of course, that in 2006 the legislation was significantly changed, a number of decisions have followed in relation to the considerations that must be looked at by a court. I am mindful of the decision in Morgan & Miles (2007) FLC 93-343 by Boland J, as she then was, sitting as a judge of the Full Court when considering how a determination should be made in relation to parenting on an interim basis, but one that particularly included issues with regard to relocation. Her Honour said at paragraph 85 of that decision:
In Goode –
referring to Goode & Goode (2006) FLC 93-286 –
the Full Court considered whether the principles in Cowling –
(1998) FLC 92-802 –
remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph.
In Goode & Goode the Full Court then went on to speak of the obligations that arise in relation to a determination and at paragraph 73 of the decision said:
That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
Boland J, after quoting that particular aspect of the decision in Goode & Goode, went on at paragraphs 86 through 88 to say:
I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis.
If one were to simply conclude there, there is obviously strong guidance and direction provided by the Full Court to all judges exercising a jurisdiction pursuant to the provisions of the Family Law Act in relation to parenting, to act cautiously with regard to relocation and, as indicated, except in circumstances of emergency or as her Honour mentioned absent issues of abuse or violence, to continue what has existed until such time as a full inquiry can be made.
It is noteworthy, however, that her Honour at paragraph 91 under the subheading, “Do different considerations apply if the proposed relocation is intrastate, interstate, or international or “local”?”, commented:
The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report… This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
I make reference specifically to that issue for two reasons. The first is that whilst distance is a factor to be considered, I am mindful there, in particular, of the provisions of section 65DAA(5) and the need to consider practicability in relation to arrangements, it is not necessarily determinative. It is, of course, a factor to be considered, particularly when as emphasised on the part of the father, however there is very great expense that would be incurred by him with regard to spending time with the children if the mother’s relocation was to occur. It also, however, needs to be considered in terms of whether the relationship between the child and the parent is one in which it is predominantly the case that the child has been in the care of one parent and the involvement or relationship that the other parent has had with the child has been of a more limited nature. Later in these reasons I shall come to that particular aspect of the mother’s case in relation to this matter.
As is clear, I hope, from those considerations, there are significant and various issues that need to be considered in relation to arrangements with regard to any such orders. Particularly relevant in relation to these proceedings also are the considerations with regard to the effects of domestic violence, as alleged by the mother in relation to these proceedings. I was referred understandably to the decision of the Full Court of the Family Court in Deiter & Deiter [2011] FamCAFC 82, where their Honours turned their minds specifically to issues in relation to matters with regard to domestic violence and the circumstances that might arise in respect of such issues, where a relocation has already occurred. At paragraph 49 of their decision their Honours made comment about issues with regard to whether a relocation has occurred and if it has occurred, whether authorised or not, what might be the consequences of that. They said:
We will consider later whether it was open to his Honour to form the view he did about the time the children should ideally spend with the father. Assuming he is right to form that view, we consider his Honour should next have considered for how long the children would be denied this ideal arrangement if they stayed living in Perth. This was an important consideration, given the many findings which pointed to their interests being advanced by remaining in Perth pending the final hearing. These included that:
. the children appeared to have settled into their new routine in Perth (which although not mentioned by his Honour, included the oldest child being half way through his first year of schooling)
. the mother was clearly more settled and secure and happy in Perth, which must have “a positive effect on the children”; and
. the mother would “struggle to cope with the situation” if she was to return to Sydney, which “may well have an adverse effect on the children”.
The relevance of those particular matters obviously is clear in relation to this case. The father, understandably, had argued on his behalf that the mother sought an adjournment on 28 January simply to, if you like, attain another two or three weeks of settled arrangements, in relation to the children. I would indicate, as I did during submissions in relation to this matter, that in my assessment, a determination of whether there was in place a settled arrangement would not in the short compass of time that has passed in relation to this matter be of great significance. It would, of course, be an entirely different consideration if, for example, a move had occurred, authorised or unauthorised, which had been allowed to become established over a period of time as occurred in Deiter & Deiter.
What is relevant, however, is that other considerations must also be looked at in relation to where, in this instance, the mother might be placed, and the evidence of the mother that she is settled and secure in (omitted), that she has family support, that she has friendships, acquaintances, both family and otherwise, which enable her to obtain far greater support than was the case, she says, available to her in (omitted).
Additionally, and also relevant, from the mother’s perspective at least, is the fact that whilst it is unclear from the material whether or not the mother would return to (omitted) should the children be ordered to return, it would be a situation where if she did return or, in fact, if she did not return and only then had the opportunity to spend limited time with the children, whether she would be able to “cope with the situation” and whether that might then have an adverse effect on the children, it being clear that however it came about, the children were primarily attached to the mother.
Certainly, over the last two months that would obviously have been the case as a result of the mother having the children in her care in (omitted), but, from the mother’s perspective, and it does seem at least to some extent to be corroborated by issues contained within documentation provided on subpoena, the mother’s position was to say that the father was more interested in other issues and other pursuits than involving himself in the lives of the children.
That certainly would need to be more fully investigated. But it is noteworthy, as was stressed, that there were concerns with regard to the father’s alcohol use which the mother says directly affected his interaction and involvement in the children’s live and at least, to some extent, there is corroboration of there being knowledge of that through the exchanges of texts between the mother and the maternal grandmother.
Additionally, the mother suggested that the father’s interest in issues relating to (omitted) and (omitted) politics, as well as in relation to other (omitted) events as they are currently occurring, meant that he was absent from interaction and involvement in the children’s lives and, as a consequence of that, was not able to fully participate in the children’s lives. I shall come to that issue in a few moments.
Before leaving Deiter & Deiter, however, it is also significant that in this matter where there are serious allegations of domestic violence in many forms, there needs to be consideration given to those allegations notwithstanding that they have not been fully tested. I was referred, understandably, to the Full Court’s comments under the heading Exposure of Children to Family Violence to paragraphs 60 onwards of the decision.
At paragraph 60, the Court said:
Notwithstanding that, we are nevertheless of the view that his Honour should have placed much more weight than he ultimately did on the mother’s evidence. In our view, his Honour needed to do this in order to attempt to assess the risks to the mother and children if the mother was required to take up residence in closer proximity to the father (and placed in a position where, potentially, she had to facilitate eight handovers per week).
It then is noteworthy that the Full Court commented specifically upon the burdens placed upon Family Law decision makers and how they have to balance conflicting and sometimes untested evidence.
At paragraph 61, they said:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
It emphasises the exact difficulty that arises in relation to this matter. The mother makes allegations of the most serious nature in relation to the father. She annexes to her material photographs of the child, X, with severe bruising to her face and alleges that it was as a result of inappropriate, in the extreme, disciplining by the father or simply uncontrolled violence where the child was struck in the face with the buckle of a belt.
The father, of course and understandably particularly if it is not true, categorically denies that and raises questions or concerns as to whether, in fact, the mother has superimposed her facts or circumstances over a situation that arose from an unfortunate occurrence at family day care or a fun water park where the child collided with another child and had an eye injury.
It is, of course, difficult to balance those two matters and they will need necessarily to be the subject of far more significant inquiry. But it emphasises the obvious difficulty between determining what would be in the best interests of the children if the allegations were true or if they were not true.
Additionally, however, the mother raises serious allegations of physical assaults, rape within marriage and domestic violence both of a physical and psychological nature perpetrated upon her by the father. Again, the father, understandably and categorically, denies the truth of such matters and it is noteworthy that the mother, as was emphasised by counsel for the father does not appear to have raised any such matters of those very serious physical issues in any of the meetings or discussions she has had with doctors or psychologists.
From the perspective of the mother and, again, just as clearly understood and seen in this and other courts exercising this jurisdiction on a daily basis, the fact is that where there is horrendous domestic violence, there are often excuses made. There are failures to cry out for help until it finally culminates in a separation and then such circumstances arise. Again, it displays the obvious difficulty that the Court has in relation to determining such a matter as this.
In Deiter & Deiter, the Full Court then went on to comment upon the guidance previously provided, for example, in Goode and Goode and in Cowling v Cowling commenting at paragraphs 62 and 63 about matters referred to by the Court in that decision. Interestingly and, perhaps, significant in this matter also the Court in Deiter then went on at paragraph 68 to comment as follows:
Although his Honour found “remarkable” similarities with the scenario Brown FM had described in Jamal & Maalouf [2008] FMCAfam 1406, the present case was not one where there were “no documents available to the court, such as domestic violence orders; police reports; or medical reports detailing injuries received”. There was a domestic violence order (albeit interim and obtained ex parte). There was a report to the police, which had been acted upon (albeit the father was pleading “not guilty”).
That is the situation here. In fact, it is exactly the situation here. An intervention order has been obtained by the mother. The father is contesting it. One does not know what might be the outcome. The mother has made complaints in relation to rape within marriage. The evidence, as best I understand it at the moment, is that it is being inquired into and the father is defending any such inquiries and would no doubt be pleading not guilty if charges were to be brought.
But the fact is that there is in place documentation and there is in place an intervention order. Additionally, and I turn now to the other evidence available in relation to this matter, there are necessary considerations that arise. They arise particularly as a result of the direction provided by the Full Court in Deiter in paragraph 77 where their Honours said:
Faced with these inconsistencies, there is no doubt his Honour needed to deal with the untested evidence very carefully. However, in our view, it was not open to him just to ignore it, merely because it had not been tested. In our view, the untested evidence should have been considered in light of the uncontested evidence – and the uncontested evidence should itself have been given more weight than it appears to have been given.
Of course, that only suggests that there must obviously be further consideration. Is there other evidence in relation to the concerns that the mother has, though perhaps not as wide ranging as the issues that were raised by her now, including physical assaults and rape within marriage.
On 28 February 2013, Dr L, writing to Dr G at the (omitted) Hospital, noted:
Thank you for seeing Ms Price – aged 26 – with anxiety disorder. I have commenced her on Sertraline which has made a huge difference to her symptoms. Please see below for initial consultation. We would like to have some CBT and also the possibility of couple’s counselling with her husband, Mr Price.
It then notes the history – and this is, of course, a history that predates the correspondence of 28 February 2013:
Very distressed and experiencing symptoms of anxiety and depression for some time now. Mainly started when Y – one year old – was born, also has X – two year old. Feels unsupported by her husband, Mr Price. He doesn’t like the baby because he cries and is a bit unsettled. Gets quite angry at the children and yells at them. Has never been physically violent towards her or the children. She feels very anxious about leaving the children alone with him as is scared they will get hurt. He often does small things that will put the children in danger, leaves them in the bath unattended even if for a few seconds. She feels like a single mother and that she cannot trust him to take care of kids. She reports that her relationship with him is fine and that they are very different people – but that is a good thing.
If you like, it emphasises both some positives and some negatives in the cases of both of the parties. It emphasises, for example, that the mother’s statements contained within her affidavits filed in relation to this matter are simply a reiteration of the concerns that she was expressing at least in respect of the father’s involvement with the children and the father’s capacity to care for the children, more than two years before the matter is now before me.
It also, of course, notes that the mother indicates that the father has not been physically violent towards her or the children. It is, of course, a situation predating February 2013 and the mother’s allegations with regard to the injuries caused to X and the physical assaults upon her are all subsequent in time. But, as was emphasised by counsel for the mother, it is also an indication of the circumstances that often arise in situations of domestic violence where the party, who is the subject of domestic violence, does not make complaint or makes excuses or gives explanations in relation to what has or has not occurred.
There is a consistency, however, from that report of February 2013, in that in July 2013, when attending with Dr J, the note of the attendance of 2 July 2013 makes reference to a major issue. It says:
Major issue is she and Mr Price differ significantly on parenting. She described him as very traditional. Believes he should be breadwinner and she remain domestic. Also the children should be seen and not heard. He provides physically and financially but Ms Price sees very little emotional support. Stated that he is very strict with the children despite their young ages. Yells at the children in their face. They have discussed these issues but he does not want to change. Says he is not interested in domestic or children. Likes his fitness, powerlifting. Obsessed with his eating and she left to cope with the children. She had hoped he may change with more exposure to children. But described, when he requires to change nappy, he got garden hose and turned it on children until they screamed. Ms Price believes he deliberately does things to sabotage her and upset her and then laughs when she gets upset. Says he is happy but she is not and can’t get him to compromise anything.
It goes on:
The parenting roles/differences have made her anxious and complicated the adjustment to being a parent. Says she was raised by her mother and hates anything that is chauvinistic. She started to become scared and overwhelmed. Does not like going to crowded places. Ms Price has plans to begin to study (course omitted) in three weeks time and concerned because she does not think that Mr Price realises how much domestic he will have to assist with if he will anyway. Says she has support of neighbours.
It goes on to note that the mother also indicated that when they were not in opposition regarding parenting and roles to be performed, that they had fun times together and go to the park, go on day trips, etcetera.
There is, obviously, the similarity between what was reported to Dr J and what was reported by the mother to her general practitioner before the transfer to (omitted) in or about April 2013.
There is also, if you like, continuity of concerns as recently as November 26 2014, only about three weeks before the mother departed from (omitted). She has reported in attending with Dr S on that day to have indicated:
Her anxiety has increased, relationship with husband very poor. He is totally disinterested. She is basically raising the kids on her own. Quite stressful.
The notations go on:
Doesn’t feel like she has done all she can to save the marriage but really husband is putting in no effort. Ms Price is aware that it may come to a time when she will leave but doesn’t feel ready to do this just yet. Going away for Christmas to spend time with the family.
It is noted that the reason for contact with the doctor was the anxiety shown by the mother and a further prescription of Sertraline was prescribed in relation to attempting to deal with the issues of Sertraline. It is noteworthy that there is, therefore, the continuation of the concerns over a period of two years or more that the mother has expressed; particularly with regard to the lack of support that she feels is provided by the father.
Of course, the other side of the coin is that the father says that he was unaware of difficulties in the relationship, considered that it was a loving, caring and supportive relationship, and one that had prospects for the future, and that he continued to believe that to be the case even after the mother departed, suggesting that with some time apart the situation would settle and the parties would reunite. That is clearly now not the case, and, if you like, the parties have both become entrenched in their positions with regard to this matter.
It is, as I commented earlier in these reasons, one of the most difficult issues that arises on a regular basis before this Court. There are obviously circumstances that need to be considered and there is a balance to be met between the allegations raised by each, in relation to the other, and the appropriate arrangements, recognising that the paramount consideration is, as it always must be, the welfare and the best interests of the children.
The parties are not communicating. The mother says that there are fears held by her, but that she feels far more secure and settled in (omitted) where she has family support. She says that she does not have that support in (omitted). It is noteworthy, however, that there is reference in her discussions with Dr J to having supportive neighbours, but the other concern that arises in that regard is that there are distinctions drawn between neighbours and family or friends, and, of course, there is no certainty of continuity in (omitted).
Whatever might have been the subject of some discussions between the parties, the best evidence currently available is that the father has a six year appointment or contract with the (employer omitted) which concludes in or about October of this year, and that there was the possibility, at least discussed, of the parties moving closer to (omitted) to be closer to the mother’s family members. There is, therefore, no settled or secure arrangements in relation to (omitted) that would be of great significance in relation to this matter, particularly if, as I indicated earlier, it would be unlikely, if not impossible, for there to be a final hearing in (omitted) before October of 2015. What would arise then would be a further lack of settled or stable arrangements and a concern that arises in that regard.
Obviously, as I am required to do, I must consider issues that arise legislatively. I made reference to the provisions of section 60CA before and have also in comments with regard to the case law made reference to the provisions of section 60CC, section 65DAA and it is also, of course, necessary to recognise the presumption that arises at law pursuant to the provisions of section 61DA with regard to equal shared parental responsibility being appropriate.
It is one of the first considerations and, of course, needs to be looked at in terms of the evidence of both of the parties, in relation to this matter. In a perfect world equal shared parental responsibility is appropriate, but it is rebuttable and, of course, it is necessary to consider whether the presumption is rebutted in circumstances where there are issues with regard to domestic or family violence or other circumstances that might simply satisfy the Court that it is not a workable or appropriate arrangement. The most common example of that, of course, arises in circumstances where there is a lack of communication or appropriate trust and respect shown between the parties.
In this matter what looms large is the issue of domestic violence, whether it is true or whether the mother has perpetrated the most dreadful fraud and manipulation upon the Court, the father and the children is a matter for further determination, but what is also clear is that it simply cannot be ignored in the circumstances that currently exist. However it came about, an intervention order, the equivalent of a Queensland domestic violence order, exists, and it is the subject of contest. It may be that it will be found to be totally unjustified and if that were to be the case it would be a factor which would weigh heavily in favour of the father in respect of final orders, but that is a matter for the future, and what the Court must consider here is the fact that such an order exists and, as I indicated earlier, the best evidence available is that there is some form of inquiry being made in relation to the criminal complaint that has been made by the mother, in relation to these proceedings.
Additionally, and perhaps just as significantly, in light of the concerns that have been expressed, I am not at all satisfied that these parties can properly communicate. Whether, in fact, that is because of the circumstances that the mother alleges in relation to her dealings with the father or whether it is, as the father suggests, because of issues and concerns with regard to the mother’s mental health and her behaviours is a matter which, again, will need to be more fully inquired into, but the fact is that there is little respect and therefore little ability to communicate between the parents. I am satisfied that equal shared parental responsibility in respect of decision-making in relation to these children is something that would be rebutted and what needs to be considered therefore is sole parental responsibility, at least on an interim basis, vesting in one parent or the other.
To determine what might be appropriate there, however, the Court obviously must consider those matters that are set out in section 60CC, in particular, subsections (2), (2A) and (3) and to note, of course, that they are a reflection of the objects and principles as detailed in section 60B(1) and (2) of the Family Law Act. Section 60B(1) and (2) is in these terms:
SECTION 60B OBJECTS OF PART AND PRINCIPLES UNDERLYING IT
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2), (2A) and (3) is in these terms:
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The starting point, therefore, in relation to determination are those considerations that arise, pursuant to the provisions of section 60CC (2) headed, “The Primary Considerations”. There are only two, but in my assessment, they are, if you like, a counter-balance, one to the other. There is obviously the need to consider the children’s right to a meaningful relationship with both of their parents and how that can be facilitated.
Noting, particularly, that the children are only four and two years of age, it is a most significant factor when one recognises that the situation generally involving very small and young children is that there should be regular opportunities for interaction to occur. The mother’s proposals, therefore, both in relation to relocation and in respect of the father’s time to be spent with the children, being in some form or another supervised, give rise to very real concerns as to the father’s ability, not only to continue to develop the relationship or, rather, to continue the relationship that currently exists between he and the children, but, in fact, to foster and develop that relationship.
However, it must be balanced, as required by law, against considerations with regard to the issues of family or domestic violence and how that might then affect not only the children, but, of course, the other party and their capacity to provide for the children. However it may have come about, intervention orders obtained in Victoria exist. They preclude certain contacts and communications between the father and the mother, though they do not obviously preclude discussion in respect of issues with regard to the children or the father’s capacity to communicate with the children, but they exist and cannot be ignored and, of course, one must be mindful specifically of the direction given by the parliament in the more recent inclusion of section 60CC (2A) which notes:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
It may be, as I have indicated, that the mother has perpetrated the most dreadful of frauds in relation to these proceedings and has made allegations in relation to the father that are without justification. I would think that if that were ultimately to be found to be the case then the question of her capacity to properly provide for and to meet the needs of the children would be of very great significance, but it would be impossible and improper for me to ignore the existence of the most serious allegations as they currently exist, and, in particular, the existence of, at least over some time, some concerns expressed with regard to the mother’s relationship with the father and the father’s capacity to provide for the children, as well as the obvious existence of the intervention order in the proceedings.
Accordingly, when that consideration is given, it is a factor which looms large in relation to the determination of this matter. I say that particularly in light of the comments that I earlier made with regard to Deiter & Deiter and the indication given by the Full Court of matters that needed to be considered, particularly with regard to the mother being more settled and secure, in this instance in (omitted). Additionally, the Court must consider the positive effect that that would have upon the children and the effects that would occur if the mother were to return to (omitted) and the consequential adverse effects that might have upon the children, either because they would be separated from the mother if she remained in (omitted) or their care provided in relation to the matter would be adversely affected, because she did not want to be there, did not feel supported, and did not have the independent support of family and friends which would be available in (omitted).
Ultimately, therefore, I have come to the decision, and it is, as the legal practitioners would know, somewhat rare for me to do so, to allow on this occasion an interim relocation in respect of the proceedings, however, that does not quite bring to a close the situation that exists in relation to the matter. The orders that were made by me on 28 January 2015 provided for the father to have the opportunity for daily communication with the children by telephone or, hopefully, by other electronic means which would provide for visual interaction, as well as for the father to have the opportunity to spend time with the children, noting, of course, his work commitments and the financial impost that would arise in that regard in (omitted).
The mother suggests that there needs to be supervision in respect of the proceedings. She says that arises because of the fears and concerns that she has expressed. However, it is a very different situation to the ultimate finding that I have made with regard to relocation arising from the allegations that have been made. Both parents in the material that has been filed have indicated that prior to separation, whilst the father’s interaction with the children may have been more limited than the mother’s, there were positives, there were good times. The children enjoyed their time with the father.
More recently the father had the opportunity to spend a week with the children early in February and both parties acknowledge that, whilst there were some concerns expressed by each as to what might or might not have been mentioned or stated to the children by the other parent, the children generally enjoyed the opportunity for time to be spent with the father.
The mother’s concerns may be legitimate but they are, in my assessment, not concerns which would give rise to any need for the father’s time to be spent with the children to be supervised. I am satisfied therefore that whilst the orders proposed generally by the mother in relation to this matter, including sole parental responsibility vesting in her, at least on an interim basis, and for the children to live with her in (omitted), should occur, it should certainly be the case that the father’s opportunity to spend time with the children and to communicate with the children should be without hindrance, other than that which, of course, arises geographically and financially.
I intend therefore to make orders generally in terms of those requested by the mother in relation to these proceedings, but to provide for the father to have the opportunity spend time with the children at all reasonable opportunities that he is able to do so, for periods of up to seven days, each 21 days, realising that he does have the commitments of work etcetera, and to also have the opportunity to communicate with the children at 5.30 pm Queensland time each day, with the father to be responsible for making the calls to the children and for the mother to ensure that the children are available to receive such calls or other electronic communication in a quiet and private environment.
I do not intend, as sought by the mother in the amended response, to make orders with regard to matters such as the father completing an Alcoholics Anonymous course and showing proof of one year’s sobriety. With respect, it is impossible to do so, and does suggest that that should be a precondition to the father having any more significant interaction with the children. I do not know and I cannot say what might be appropriate. It is proper that there be some restraint upon each parent in relation to the excessive consumption of alcohol when the children are in their case, not because I have, at the present time, with respect to either the mother of the father concerns specifically in that regard, but simply because as responsible parents they would care and provide for the children.
Similarly, therefore I do not intend to make an order but rather simply indicate to both parents that there will not only be the observation of the other parent in respect of what they do and how they behave with the children, but obviously there would be the obvious concerns of the Court in relation to the matter.
I do not intend, therefore, to make other orders which are, if you like, to a significant degree, “motherhood orders”. In other words, to order that each parent not denigrate the other in the presence of the children or allow the children to remain in the presence of persons who behave in such a manner. Appropriate parenting would mean that parents would not allow their children to be the subject of such abusive behaviours.
If evidence were to subsequently become available in relation to those matters, then it would be a matter that might be ultimately required to be determined at a final hearing but at the present time I do not intend to make such orders, in relation to this matter.
What is clear also, however, is that, in my assessment, the only proper course then to follow from the children living with the mother in (omitted) is for the proceedings to be further heard on a final basis in Victoria and to that end I intend to make an order pursuant to the provisions of rule 8 of the Federal Circuit Court Rules to change the venue for the final hearing to the Federal Circuit Court of Australia in Melbourne.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 25 March 2015
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