Quincy & Quincy

Case [2021] FamCA 14

FAMILY COURT OF AUSTRALIA

Quincy & Quincy [2021] FamCA 14

File number(s): ADC 4969 of 2020
Judgment of: BERMAN J
Date of judgment: 29 January 2021
Catchwords:

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Interim orders – Where the mother seeks that the children live with her and spend limited and supervised time with the father – Where the father seeks significant and substantial time with the children – Where there are allegations of family violence – Where a cautious approach should be adopted where the evidence has not been tested – Where the father has gained insight into the consequences of his conduct and is making progress – Where the father has been spending supervised time with the children – Where the mother recognises the importance of the children having a meaningful relationship with the father – Bests interests of the children – Orders.

FAMILY LAW – CHILDREN – Best interests – Travel – Where the mother seeks to travel with the children to the United Kingdom for two months – Where the father opposes the travel due to the risks associated with COVID-19 – Where the parties are currently restrained from removing the children from the Commonwealth of Australia – Where the Court can take judicial notice of the difficulties likely to be experienced with the travel – Consideration of the prospects of isolation, risk of infection and inability to return to Australia – Where it would not be in the best interests of the children to travel.
Legislation:

Evidence Act 1995 (Cth) s 144

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Cases cited: Marvel & Marvel (2010) 43 Fam LR 348
Number of paragraphs: 60
Date of hearing: 7 December 2020
Place: Adelaide
Counsel for the Applicant: Ms Pyke QC
Solicitor for the Applicant: Diane Myers Family Lawyers
Counsel for the Respondent: Ms Lewis
Solicitor for the Respondent: Resolve Divorce Lawyers

ORDERS

ADC 4969 of 2020
BETWEEN:

MR QUINCY
Applicant
AND:

MS QUINCY
Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

29 JANUARY 2021

UNTIL FURTHER ORDERS THE COURT ORDERS:

1.That X born … 2017 and Y born … 2018 (collectively “the children”) live with the mother.

2.That the children spend time with the father as follows:-

(a)Until 20 April 2021:-

(i)each Tuesday from 9.00 am to 4.00 pm; and

(ii)each Saturday from 9.00 am to 4.00 pm;

PROVIDED that the children’s time with the father be under substantial supervision by the paternal grandmother Ms B Quincy such that if the children spend time with the father at the home of the paternal grandmother she is required to be physically present at the premises but not to personally supervise but personal supervision is required if the time is taken away from the paternal grandmother’s premises.

(b)As and from 24 April 2021 until 24 June 2021:-

(i)each Tuesday from 9.00 am to 4.00 pm; and

(ii)each Saturday from 9.00 am to 4.00 pm.

(c)As and from 25…

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Quincy & Quincy [2021] FamCA 14
Case
[2021] FamCA 14
Decision Date

CaseChat Overview and Summary

This case concerned an application by the mother for interim orders regarding the children's living arrangements and time with the father, and a separate application by the mother to travel with the children to the United Kingdom. The father sought significant and substantial time with the children. Allegations of family violence were raised, and the court was required to adopt a cautious approach given that the evidence had not been tested.

The court was required to determine the best interests of the children in relation to their living arrangements, the extent and nature of the father's time with them, and whether the mother should be permitted to travel with the children to the United Kingdom for two months. The court also considered the impact of COVID-19 on international travel and the potential risks associated with such travel.

Berman J ordered that the children live with the mother and that the father have progressively increasing time with them, commencing with supervised time and moving towards unsupervised alternate weekend and weekday overnights. The court noted the father's progress in gaining insight into the consequences of his past conduct and his efforts to cease alcohol consumption. The mother's application to travel to the United Kingdom was refused, with the court taking judicial notice of the difficulties and risks associated with international travel during the pandemic, including isolation, infection, and the inability to return to Australia, concluding that such travel would not be in the children's best interests. Injunctions were granted restraining the removal of the children from Australia and restraining the father from consuming alcohol while the children were in his care. The court also made orders regarding communication between the parties and prohibitions against denigrating the other parent or discussing proceedings in the presence of the children.

Orders

Orders of the court

UNTIL FURTHER ORDERS THE COURT ORDERS:

1. That X born … 2017 and Y born … 2018 (collectively “the children”) live with the mother.

2. That the children spend time with the father as follows:-

(a) Until 20 April 2021:-

(i) each Tuesday from 9.00 am to 4.00 pm; and

(ii) each Saturday from 9.00 am to 4.00 pm;

PROVIDED that the children’s time with the father be under substantial supervision by the paternal grandmother Ms B Quincy such that if the children spend time with the father at the home of the paternal grandmother she is required to be physically present at the premises but not to personally supervise but personal supervision is required if the time is taken away from the paternal grandmother’s premises.

(b) As and from 24 April 2021 until 24 June 2021:-

(i) each Tuesday from 9.00 am to 4.00 pm; and

(ii) each Saturday from 9.00 am to 4.00 pm.

(c) As and from 25 June 2021:-

(i) from 5.00 pm Friday to 5.00 pm Saturday commencing 25 June 2021 and each alternate week thereafter; and

(ii) from the conclusion of childcare/early learning centre on Monday to 9.00 am on Tuesday commencing 5 July 2021 and each alternate week thereafter.

(d) For such other times as may be agreed between the parties.

3. That the mother is restrained and an injunction is granted restraining her from removing the children from the Commonwealth of Australia without first having obtained the husband’s written consent or an order of this Honourable Court.

4. That until further order Ms Quincy born … 1979 and Mr Quincy born … 1974, their servants and/or agents be and are hereby restrained by injunction and irrespective of authenticated consent as contemplated in Pt VII of the Family Law Act 1975 (Cth) from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders their removal.

5. That the father be restrained and an injunction granted restraining him from consuming alcohol whilst the children are in his care.

6. That the parties shall communicate by way of email as the primary form of communication in respect of information relating to the children.

7. That each party keep the other informed of:-

(a) their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change; and

(b) any serious illness, accident or incident involving the children including any medications prescribed or recommended by any health professional for the children, with each party to be at liberty to visit during any periods when the children may be hospitalised.

8. That each of the parties be restrained from:-

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other party either in person or by any other means including but not limited to social media outlets directly or indirectly or allowing any other person to do so;

(b) discussing these proceedings with or in the presence of the children; and

(c) administering physical discipline to the children.

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

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

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

In submissions, the father considered that overnight time would be in the best interests of the children and was prepared to undergo an alcotest and that his time with the children be subject to supervision.THE FATHER’S EVIDENCE The parties married in 2017 and separated on or about 17 July 2020. As at the date of separation the mother obtained an interim intervention order to protect her from intimidating or threatening conduct or behaviour of the father. On 25 September 2020 the father consented to a final intervention order that enabled him to communicate with the children and the mother. The mother alleges that the father is unable to control his alcohol intake and when intoxicated his behaviour is aggressive and has the potential to place the children and the mother at risk. The father concedes that both parties were heavy drinkers, however he contends that since the interim intervention order was made, he has ceased alcohol consumption entirely. The mother is an Australian resident but maintains her United Kingdom citizenship. The father acknowledges that the mother has significant family ties in the United Kingdom and is homesick. The father does not want the children to relocate to the United Kingdom and is concerned that if permitted to do so he will have limited opportunity to maintain a meaningful relationship with them. In early 2020 the mother was diagnosed with cancer. Following a surgical procedure on 1 April 2020, the mother recuperated in the home of the paternal grandfather and step-grandmother for about three weeks. The father cared for the children with some assistance from the paternal grandmother during the mother’s period of recuperation. The father concedes that during the relationship he continued to consume alcohol to excess. He regrets that there were periods of high conflict between the parties and on occasion in the presence of the children. He describes his behaviour as appalling and is ashamed of himself. He accepts that his conduct, which included volatile arguments, abusive language and acts of physical aggression involving the throwing of food, the breaking of plates and the slamming of doors caused extreme distress to the mother, in particular at a time when she was at a low physical and emotional ebb. The father has spent time with the children following separation on various occasions, either supervised directly by the paternal grandmother or at the very least at her premises. The father also contends that he has taken alcohol tests before each visit and all test results have been negative. Whilst the father is frank as to the likely detrimental impact of his conduct upon the mother, he observes that the children appear happy to be with him and enjoy his company and with members of his extended family. The father was not initially opposed to the mother’s proposal to take the children for a holiday to the United Kingdom. The following paragraph summarises his position:-63.Since our relationship commenced the wife has returned to the United Kingdom for holidays on several occasions. Her general proposal was that we would live in Australia and raise the children here and we would maintain a base in the UK for holidays. I appreciate that the wife wishes to maintain a strong connection between the children and her family in the UK and accordingly I propose that if she would like to take the children for holidays to the United Kingdom that she does so at times that coincide with the Australian school holiday periods. If the wife takes the children away on holidays, I propose maintaining contact via Skype or a similar platform not less than every three days.[1][1] Affidavit of the father filed 15 October 2020.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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