Quincy & Quincy

[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 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).

REASONS FOR JUDGMENT

BERMAN J

1. Mr Quincy (“the father”) and Ms Quincy (“the mother”) are engaged in ongoing litigation in respect of the parenting arrangements for X born in 2017 and Y born in 2018 (collectively “the children”).

2. By Amended Initiating Application filed 13 November 2020 the father seeks final orders that the parties have equal shared parental responsibility for the children and that they live with the mother and spend significant and substantial time with the father.

3. It is a focus of the father’s application that the mother be restrained from removing the children from the Commonwealth of Australia without the father’s consent.  That aspect of the final orders sought is reflected in the following interim orders sought:-

   2.That the mother do forthwith deliver up to the Registry of this Honourable Court or alternatively to the father, each child’s Australian and U.K. passports.

   3.That the mother be restrained and an injunction be granted restraining her from:-

   3.1      Removing the children from the Commonwealth of Australia;

   3.2Removing the children from their current place of residence at C Street, D Town, South Australia;

   3.3Attempting to obtain a Passport, Visa or other travel document for the children.

4. By her Response to Initiating Application filed 12 November 2020 the mother seeks final orders such that she be permitted to relocate the children to the United Kingdom.

5. By way of interim orders the mother seeks the following:-

   6.That the children and the mother be permitted to travel to the United Kingdom for a holiday for a period of three (3) months on or after 1 December 2020.

   7.That the parties will do all such things and sign all such documents as may be necessary to facilitate the children and the mother holidaying in the United Kingdom pursuant to paragraph 6.

   8.That the children’s time with the father be suspended during the holiday to the United Kingdom pursuant to paragraph 6.

6. At the interim hearing on 7 December 2020 the mother sought leave to change her application such that she now seeks permission to travel with the children overseas for a period of two months to occur between January 2021 and August 2021.

7. The father opposes the mother’s application seeking leave to travel with the children to the United Kingdom on the basis that there may well be a significant health risk posed to the mother and/or the children by the COVID-19 pandemic, in particular what was then considered to be a deteriorating COVID-19 environment in the United Kingdom.

8. The father accepts that the mother may well be homesick and that if overseas travel is permitted then the children’s absence from Australia should be limited to one month and in particular that it be taken during the children’s school holidays.

9. On 17 November 2020 a consent order was made placing the children on the Family Law Watchlist and restraining each of the parties from removing the children from the Commonwealth of Australia until 9 December 2020, which was subsequently extended until 28 May 2021. 

10. The parties are also not agreed as to the interim parenting arrangements.  The mother seeks that the children live with her and spend time with the father as follows:-

    (a)each Tuesday from 9.00 am to 3.00 pm; and

    (b)each Saturday from 9.00 am to 3.00 pm;

11. The mother seeks that the children’s time with the father be subject to the following conditions:-

    ·The father’s time is to be supervised by the paternal grandmother; and

    ·Subject to the father submitting to a breath analysis test at the commencement and conclusion of each period with the children, with the maternal grandmother to facilitate the test via Facetime to the mother.

12. For his part, the father seeks that the children spend time with him as follows:-

    (a)Until the children commence school:-

    (i)In week one from 5.00 pm Friday until 5.00 pm Sunday and each alternate week thereafter;

    (ii)In week two from the conclusion of childcare/early learning centre on Monday until 9.00 am on the following Wednesday or the commencement of childcare/early learning centre in each alternate week thereafter; and

    (iii)For such other times and special occasions as may be agreed between the parties.

    (b)Upon the commencement of school:-

    (i)From after school Friday until the commencement of school Monday each alternate weekend;

    (ii)On one weekday each week from after school until the commencement of school the following day; and

    (iii)For one half of all end of term school holidays.

13. 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

14. The parties married in 2017 and separated on or about 17 July 2020.

15. 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.

16. On 25 September 2020 the father consented to a final intervention order that enabled him to communicate with the children and the mother.

17. 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.

18. 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.

19. The mother is an Australian resident but maintains her United Kingdom citizenship.

20. The father acknowledges that the mother has significant family ties in the United Kingdom and is homesick.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. The father also contends that he has taken alcohol tests before each visit and all test results have been negative.

27. 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. 

28. 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.

29. Following separation the father sought a referral to Ms F, psychologist, seeking treatment for anxiety and depression.  Ms F prepared a report dated 1 December 2020 being Annexure “F-2” to the father’s affidavit filed 2 December 2020.  The report confirms that the father has had extensive engagement with Ms F to seek assistance and treatment for depression and anxiety.

30. The father acknowledged that he had been a heavy drinker throughout his adult life and certainly during the course of the marriage.  He was frank in disclosing his verbally abusive conduct and that his behaviour was highly distressing to the mother.

31. Ms F concluded that the father was focused on anger management and positive behavioural changes.

32. In the clinical opinion of Ms F, the father has learnt to manage his anger and alcohol use over an extended period.  He has gained insight as to the damaging consequences of his former aggressive conduct and has been accepted for the “Children” program. He continues to engage in cognitive behavioural therapy to reinforce his alcohol abstinence and his maladaptive behaviours.

    THE MOTHER’S EVIDENCE

33. The mother was diagnosed with cancer in early 2020 and has since undergone significant surgery.  Her diagnosis is guarded but she considers that her physical health, together with the anxiety arising from the parties’ separation, has had an adverse impact upon her mental health.

34. The mother asserts that whilst the parties would drink alcohol together and on occasion to excess, the father’s alcohol consumption resulted in his aggressive and angry behaviour.

35. There may be some disagreement between the parties as to the extent of the father’s alcohol abuse and the behaviour thereafter displayed, but given the father’s concession, it is reasonable to place significant weight on the matters raised by the mother.

36. It also appears that when intoxicated the father would display aggressive conduct.  The father became physical with the mother and engaged in threatening and abusive conduct.

37. The mother alleges that the father has breached the intervention order on several occasions by attempting to make direct or indirect contact with the mother.

38. Whilst initially seeking an extended period with the children in the United Kingdom, the mother now recognises that the COVID-19 pandemic has dramatically changed the ability and opportunity for reliable travel between Australia and the United Kingdom.

    INTERIM PARENTING

39. In Marvel & Marvel (2010) 43 Fam LR 348 at 375 the Full Court considered the approach to be adopted when presented with contested evidence on an interim parenting hearing:

    [120]   As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.

40. I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested.  That does not mean that the Court is not able to make an appropriate interim order.  Although the Court should generally be risk adverse and cautious, it does not mean that I am obliged to only make orders consistent with the current practice of the parties or that mirrors the earlier arrangement.

41. The competing applications of the parties must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”), which outlines the objects and the principles underlying Part VII of the Act.

42. Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is of paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

43. I propose to adopt the following approach:

    (a)Give consideration to the separate proposals put by each of the parties as they were identified and put to the Court;

    (b)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2);

    (c)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interest;

    (d)Have regard to the primary considerations under s 60CC(2) of the Act, namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;

    (e)Have regard to the additional considerations of s 60CC(3) of the Act; and

    (f)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.

1. Considerations of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence and as discussed, the evidence and issues raised by each of the parties are approached with caution.

2. Section 60B(1) of the Act provides the aims and objects of the Act are to ensure that the best interests of a child or 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.

3. The mother recognises that it is important for the children to have a meaningful relationship with their father.   The mother remains mistrustful of him, however during the period of the mother’s convalescence the children remained in the father’s care for about 12 days, although it is likely that he received significant assistance from the paternal grandmother.

4. The final orders sought by the mother contemplate that upon being permitted to relocate the children to the United Kingdom, the children would spend extended periods with the father either in Australia or in the United Kingdom.

5. It seems inherent in the mother’s proposal that subject to the father completing his rehabilitation and the mother being satisfied that by reason of intoxication the father no longer presents a risk to the children, the strict provisions comprising no overnight time, a clear alcohol test and the supervision by the paternal grandmother would no longer be necessary.

6. I consider that the evidence presented by the father supports a finding that he is making progress. He is making progress both in terms of his alcohol use and abuse and his level of insight as to the potential for the children to be adversely affected by the physical violence perpetrated towards the mother, during the course of the relationship and conduct following separation, which was unsettling to the mother in terms of the potential for there to be a breach of the intervention order.

7. The Court can have significant confidence in the paternal grandmother and in those circumstances it is reasonable to make the orders sought by the mother albeit with some modest increase in time and some amendment to the conditions of supervision and alcohol testing before overnight time should be introduced.

   COVID-19

8. The mother recognised that the COVID-19 pandemic has introduced a significant level of uncertainty in respect of her proposal to take the children to the United Kingdom for a period of two months at some stage in 2021.

9. Pursuant to s 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”) I can take judicial notice of the difficulties likely to be experienced travelling between the United Kingdom and Australia. Any order I make will need to take into consideration the practicalities of travel against the backdrop of the COVID-19 pandemic and travel restrictions imposed as a result.

10. At present, the difficulty of Australian citizens wishing to return to the Commonwealth of Australia from an overseas destination is notorious.

11. Entry to the United Kingdom requires a negative test for COVID-19 and the potential for isolation.  Australian citizens returning to Australia are required to isolate in a secure approved facility.

12. It is also uncontroversial that the COVID-19 pandemic has overwhelmed the United Kingdom health system.

13. Whilst it is likely that the mother could arrange for the travel to the United Kingdom, there is no certainty of her ability to return the children to Australia either after the one month period as proposed by the father or the two month period proposed by her.

14. The very fact that it is likely the children will need to quarantine, both in the United Kingdom on their arrival and in Australia on their return, would seem to be inconsistent with the best interests of the children.

15. I accept that the mother is anxious to receive support from and reconnect with her family, especially given her recent health issues.  The focus must be in respect of the best interests of the children and at this stage the mother’s proposal has the distinct prospect of causing disadvantage to the children by the requirements for isolation, the risk of infection and the uncertainty of their ability to return to Australia.

16. I do not consider that it is appropriate to make orders in terms of the mother’s application to travel with the children to the United Kingdom.

17. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       29 January 2021