Reilly and Mooney
[2017] FamCA 1164
•17 October 2017
FAMILY COURT OF AUSTRALIA
| REILLY & MOONEY | [2017] FamCA 1164 |
| FAMILY LAW – CHILDREN – PARENTING – International relocation – child not yet two years of age – where there is no discernible relationship between father and child – where mother suffers anxiety – where family violence manifested in mother’s fear – where nothing supports mother’s retention in Australia. FAMILY LAW – PARENTING – coercive orders – where father seeks order that mother move to Brisbane – where that sort of order is extreme and unusual – where the evidence does not support such a move. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Reilly |
| RESPONDENT: | Mr Mooney |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 3092 | of | 2017 |
| DATE DELIVERED: | 17 October 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 25, 26 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Chislett |
| SOLICITOR FOR THE APPLICANT: | Gaffney Law |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Marchetti |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
Paragraph 3 of the orders made on 8 June 2017 (the Airport Watch order) is forthwith discharged.
All other extant parenting orders are discharged.
The father and the mother have equal shared parental responsibility for all major long-term decisions relating to X born … 2015 and for that purpose, communications be by electronic means.
That the child live with the mother.
Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the mother has permission to take the child from the Commonwealth of Australia and travel with him internationally.
That as soon as practicable, the mother notify the father of the date that she is leaving Australia to live in the UK.
The father spend time with the child:
(a)Before the mother leaves Australia, and at any time she returns to Australia, from 10 am to 5 pm (or such other time as may be agreed) on each Saturday and each Sunday in Melbourne; and
(b)When the mother returns to the UK, and if the father travels there, during each day from 10 am until 5 pm (provided he has given the mother 2 weeks’ notice of his intention to travel to the UK)
The father have FaceTime communication (or electronic equivalent) with the child on each Monday and Thursday at 6 pm (Queensland time) for up to 30 minutes and the mother do all things necessary to facilitate such communication.
That in addition to the days referred to in paragraph 8, but with the same arrangements, the father have FaceTime communication on Christmas Day, Easter Sunday, his birthday, Fathers’ Day and the child’s birthday.
Within 60 days, the father and the mother do all things necessary to register these orders in a court of competent jurisdiction in the United Kingdom.
The order for the appointment of an Independent Children’s Lawyer is discharged.
Pursuant to Sections 65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
That all applications for parenting orders are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reilly & Mooney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3092 of 2017
| Ms Reilly |
Applicant
And
| Mr Mooney |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
In her application for parenting orders, Ms Reilly (“the mother”) seeks permission of the court to move the child not yet aged two years, to live permanently in the UK. Mr Reilly (“the father”) opposes the application. He too seeks parenting orders but principally that the mother live in Brisbane where he resides.
The father’s proposal
As the trial began, the father’s written position was that if the court found that the mother was unable to care for the child, there be a change of residence so that the child would live with him. When questioned about that, he equivocated and said that he did not want to take the child away from the mother.
On the second day of the trial, the father provided a document with five alternative proposals. They were:
(a)if the mother remained in Melbourne with the child (where he presently lives), each month, the father would travel to Melbourne and spend initially four hours on Saturday and four hours on Sunday with that time increasing until the child reached three years and three months old. On one weekend per month the mother would be required to fly the child to Brisbane where the same routine would be followed. As the child reached three years and three months, he would fly to Brisbane with the father and remain there for five days. In addition to that, there would be Facetime communication twice per week;
(b)if the court permitted the child to relocate to the UK then there would be Facetime calls three times per week for 30 minutes and two calls per week with the child’s sister who lives with her mother in Queensland. The father would travel to the UK once per year for two weeks and the regime would then be daytime contact until the child turned three years old increasing thereafter to include overnights once he turned four. The mother would be required to travel to Australia once per year for two weeks on the same time basis;
(c)if the mother returned to the UK but the child went to live with his father in Brisbane, the mother would have Facetime communication and the father would take the child to the UK once per year for two weeks and if the mother came to Australia, a similar arrangement;
(d)if the mother remained in Melbourne but the child lived with the father in Brisbane, the mother have one weekend per month in Brisbane and once per month the father would travel to Melbourne with the child to spend four days with the mother and that otherwise the mother could travel to Brisbane as often as she could afford giving appropriate notice; and
(e)if both parents lived in Brisbane but the child lived with the father, he have four days per fortnight with the mother and a sharing of holidays and special occasions together with Facetime communication.
As the hearing progressed and particularly after the evidence of the family consultant, the focus was on the question of whether or not the father could travel to Melbourne more than once per month and whilst he said he would endeavour to do so, an examination of his financial position was such that it would appear most unlikely. Similarly, it was unlikely that the mother could travel from Melbourne to Brisbane because of her financial position.
The mother’s proposal
In her outline of argument, the mother proposed that she be permitted to relocate the child to the UK and that if the father remained in Australia, the child have time with him by agreement “when the mother travels to Australia” and “the father travels to the UK”. A variety of other ancillary proposals were contemplated but the time element has to be seen in the context of the following proposed order by the mother:
That [the child’s] time with the father pursuant to paragraphs 4 and 6 is conditional upon the father providing a clean hair follicle drug screen and alcohol screen 24 hours prior to the time commencing.
Not much thought had been put into that conditional order. No evidence was led of an expert nature as to its effectiveness. No evidence was indicated as to how an “alcohol screen” 24 hours prior to time commencing, could be done or where it could be done. Questions of onus of proof and obligations to satisfy the orders not to mention costs remained unspoken. That approach was not much help to the court.
Only after considerable discussion did counsel for the mother propose alternative orders that if the child live with the mother but it had to be in Melbourne, then the father spend time with him every two months on a Sunday until the child turned three years of age and then the time increased thereafter with changeover occurring in a contact centre. This time, the proposal about conditions read:
That the father’s time will commence upon provision of a clean drug screen.
It is not at all clear what that means and whether the father would only be required to do it once and not as part of the ongoing regime of contact.
A second alternative proposal was put that if the mother was required to stay in Brisbane, the father spend time on alternate weekends from 10.00am to 2.00pm on Sundays until the child turned three years of age and then the time would increase as the years went by. The same drug screening was repeated.
The parties’ financial positions
I find that the mother is currently a Centrelink benefit recipient whose only income potential to better herself financially above that present level would arise if she had employment but if that was pursued while she had the care of the child and to do so, required day care facilities, the possible increase in income would be doubtful. More significantly, her living expenses which are canvassed later, would be such that there would not be sufficient excess to fund the necessary air travel particularly having regard to the age of the child.
In relation to the father, employment details were sketchy but he indicated that he could work more hours, book fares well in advance and rely on assistance from extended family members. But even so, with obligations to maintain the child’s sister who presently does not live with him and with whom he has no contact and should child support for the child become a consideration, his prospects of living within his means are very doubtful. No corroborating evidence was produced to indicate how his proposal would work. Thus, I find that there is little prospect of the father being able to attend Melbourne by air on anything more than perhaps a monthly basis. If the mother moved to the UK, anything more than a trip once a year to the UK with all of the attendant costs of accommodation, living expenses and travel not to mention continuing his obligations in Australia, made that prospect untenable. The father acknowledged as much by indicating that he would be able to gather enough money to travel to the UK once every two or three years.
It is readily accepted that putting an alternative proposal in such a case as this is very difficult because, in the father’s case, he considers that if the mother returns to the UK with the child, any relationship he might otherwise have will never occur.
The position of the Independent Children’s Lawyer
An Independent Children’s Lawyer had been appointed by the court. As the trial began, counsel for the Independent Children’s Lawyer advised that the preferred position was for the child to live in Melbourne with his mother and, the alternative but not preferred position, was that the child live with his mother in Brisbane.
At the conclusion of the hearing however, the Independent Children’s Lawyer shifted significantly. Counsel for the Independent Children’s Lawyer submitted that it was in the child’s best interest if he live with the mother in the UK. That would mean the face to face contact between the father and the child was at most very limited.
It was also acknowledged by the Independent Children’s Lawyer that the father’s proposal of the mother being required to move to Queensland with the child was a coercive order and the authorities required significant evidence to show that could be done. It was submitted in this case that there was no basis for such a coercive order.
Issues
After discussion as the trial began, five issues were isolated and identified for the focus of attention. They were:
(a) was there family violence and if so, was it significant?
(b)has the mother any justification for her espoused fear of returning to Queensland to live?
(c)is there evidence to satisfy the court that it is important for the mother to live in the UK because of her mental health?
(d)what is the present relationship between the father and the child and is there a prospect of its improvement and if so, how? and
(e)where does the child Y who is the sibling of the child, but from the father’s earlier relationship, fit into this dispute?
The parties’ evidence was set out in their affidavits.
Further evidence
When the father began his evidence, he confirmed his affidavit was true and correct but he then added that he had three pieces of electronic evidence on a USB stick that he wanted the court to see. Objection was taken by the mother on the grounds of lateness and by the Independent Children’s Lawyer on the basis of relevance. All pieces of evidence were said to relate to the father’s interaction with his former partner Ms B. One concerned the attendance by the father at Ms B’s home which resulted in him being charged with breaching the family violence order.
Having regard to the fact that the evidence had not been presented by the father prior to the hearing and at best, it related to his dealing with Ms B, it would have been both unfair to the mother and inappropriate to allow that evidence to be given without it first being put to Ms B.
There was also a recording of a telephone conversation which the father said he undertook whilst the person at the other end did not know of the recording taking place. When I queried what the father knew about the legal position associated with that, he simply said that it had been permitted in the C Town Magistrates’ Court. That is not a justification for permitting it here and absent some indication of its relevance to the proceedings between the father and the mother, and there was none, in my view the father should not be permitted to use it. Accordingly, I rejected that application.
Background
The mother has UK heritage coming to Australia in 2010 on a working visa. She has principally worked in administrative positions.
In January 2015, the parents met and the mother almost immediately became pregnant and moved into the father’s home in Brisbane.
In May 2015, after a visit back to the UK, and despite saying she was unhappy with her relationship with the father, the mother became engaged to marry the father. There is a dispute about the long term intentions of both parties and apart from it being a credit issue, it does not affect this determination.
The child was born in 2015. In May 2016 with the father’s agreement, the mother and the child went to visit her family in the UK. Return flights had been booked but in the UK, the mother made a decision she would not return to Australia.
In the UK, the mother lived with her parents who had been out to Australia just after the child’s birth. They had witnessed the aggression of the father towards their daughter. Despite that, it was only well into the mother’s visit to the UK that she indicated a desire to stay.
In June 2016, the mother advised the father of her decision to remain in the UK; the only contact occurring at that time between the child and the father was by Facetime. It must be understood that communication was limited because the child was only months old. Even so, the father complained that the mother was uncooperative. For her part, the mother complained that the father was more focussed on her and it seems logical to accept that the child could not understand what was going on.
Having been told that the mother was not returning, the father instituted proceedings under the Hague Convention and was successful in November 2016 when the court in the UK ordered that the child return. The mother appealed but was unsuccessful in a decision handed down in February 2017 that she should return to Australia.
The mother did return to Australia with the child but instead of moving to Brisbane, came to Melbourne and currently remains. No specific order had been made for the mother to return to Brisbane although that might have been anticipated. No action was immediately taken by the father to rectify the positon.
The gap between May 2016 when the mother left Australia, and her return ten months later, has significantly limited any form of relationship between the child and the father.
Upon arrival in Australia, the mother commenced proceedings in this court. She made serious allegations of family violence against the father which he denies. The court is now asked to make findings about them because, apart from the statutory requirements to consider the impact of family violence on the best interests of a child, the issue underpins the mother’s stated fear of being anywhere near the father.
The mother also alleges (and the father denies) a history of illicit drug usage and excessive alcohol consumption. All of that is said to give rise to an unacceptable risk for not just the child but also the mother.
For the reasons below, I accept the mother’s evidence about most of those issues.
As the hearing began, I explained to the father who represented himself that the determinations I had to make were on the balance of probabilities. I explained the process to him and in particular, the need to cross-examine witnesses whose evidence he disputed.
In the reasons that follow, the determinations are made on the balance of probabilities.
Interim orders June 2017
In June 2017, orders were made by Senior Registrar FitzGibbon who required that the child “remain” with the mother whilst noting the father opposed an interim residence order. The Senior Registrar made an order by consent of both parties that the child spend an hour with the father on 9 June at a McDonald’s Restaurant and that the changeover occur under the supervision of the mother’s nominee. The parties specifically added to that consensual arrangement that there was no requirement for supervision of the father’s time. Supervision of the father’s time with the child remains a contentious issue.
The family consultant who gave advice to the court saw no reason for such supervision and despite the findings below about the father’s aggressive behaviour and his attitude towards the mother, nothing in the evidence suggests that he would harm the child physically. There is also no evidence to indicate that the father would remove or withhold the child from the mother contrary to orders.
A more significant issue but one which does not require supervision, is just how to create, enhance or develop a relationship between the child and the father. There are no readily available acquaintances who would be prepared to assist and who have a close relationship with the child. Whilst a contact centre could develop that relationship, no details were provided to the court.
Presumably because the father was living in Queensland, the June 2017 orders went on to say, again with the parties’ consent, that the child have electronic communication with the father on Mondays and Thursdays for 30 minutes by Facetime. Even that has not been successful. Both parties complain about this form of contact. The mother described the child as showing off but it was difficult to get a sense of whether he understood the purpose of the exercise. The mother complained that the father questioned her rather than communicating with the child but I accept that the mother had to be present and contain the child because of his limited attention span. The mother complained that on one occasion, she had prepared the child but the father was late. His response was that he had to go to the toilet and said he would ring back.
The father correctly observed that because of the child’s age, he was easily distracted and could not communicate but he complained that the mother, in facilitating the Facetime calls, “needs to be willing to speak with me about the child”. The mother does not want to do that. The success of a Facetime or any form of electronic communication will only be seen if there is a respectful and child-focussed commitment. I find the mother has great difficulty as a result of her anxiety, being anywhere near the father physically or electronically.
Final hearing expedited
Because of the very young age of the child, the tyranny of distance between Melbourne and Brisbane and the mother’s desire to return to the UK, the final hearing was expedited and heard over three days.
In anticipation of the final hearing, at a directions hearing on 30 June 2017, I ordered the preparation of a family report. The appointed family consultant observed the interaction between the father and the child and said:
When [Mr Mooney] entered the room and called his name, [the child] looked up. He did not approach his father; however when [Mr Mooney] picked him up and hugged him, [the child] smiled and made eye contact with him. It is not possible to determine whether, or to what extent [the child] recognised his father, given he had spent two hours with him two days prior to this assessment. [The child] appeared to be quite comfortable with his father, maintaining proximity and including him in his play, for example, handing him objects. [Mr Mooney] was observed to be attentive, able to intuit [the child’s] needs. He consistently talked with [the child], naming what they were doing. He offered [the child] a snack provided by the mother, breaking this into manageable pieces for [the child] to eat and encouraged him to drink his water. The father was mindful of other young children in the playroom, especially when playing with [the child] on the slide. When it was time for [Mr Mooney] to leave, [the child] put his arms up wanting his father to pick him up. It is possible, if not likely [the child] was indicating that he did not want him to leave.
In her evidence, the family consultant opined:
Based on the history of both the couple relationship and the parenting relationship, there is little indication that [Ms Reilly] and [Mr Mooney] will be able to form a functional co-parenting relationship into the future. Currently there is no communication between them regarding [the child] and his needs.
What is needed to establish a relationship?
The opinion of the family consultant was that the child was only at the beginning stage of forming meaningful relationships. He had not had the opportunity to form any significant relationship with his father and if it was to be achieved, the child would need to spend “regular, frequent and short periods of time” with the father in person and preferably several times a week. That gives rise to the question of whether the options for the court are limited on the basis that the father will remain in Brisbane. Logic then dictates that the only way that sort of relationship could be achieved is if the mother lived in Brisbane. That is neither appropriate nor practicable because the mother has no funds to relocate. The father offered $1000 for such expenses but there was no overt commitment to ongoing expenses. There is no apparent peer or friendship base for the mother in Brisbane. Most significantly, the nature of the relationship between the mother and father is such that there is no prospect of them forming functional co-parenting relationship as would be required to fulfil the sort of time elements required by the opinion of the family consultant. .
The family consultant went on to say [75] that it was not possible to predict the course of the development of a meaningful relationship with the child and the father in any event. Thus, even if the court ordered that the child live in Brisbane with the mother, the expert evidence is that there is no guarantee that the relationship will ever advance beyond what it currently is.
When I turn to the evidence of the father below, it will be evident why the prediction about that relationship development is difficult. I find it unlikely, that any progress will be sustained. If for no other reason, the father’s financial position is such that he could not afford to travel to Melbourne more than once a month. The prospect of that enabling the foundation for a secure relationship with the child would, on the evidence of the family consultant, be unlikely.
The mother’s fear
The family consultant observed the mother’s expressed fear and concerns about living in Queensland. The family consultant was reliant upon findings of the court. For the reasons that follow, I have no doubt the mother’s fear is genuine and has foundation. The family consultant went on to say:
[72]It is likely that she will find it difficult to support and facilitate the frequency that [the child] will need to spend time with his father if a meaningful relationship is to develop…
The family consultant added that if forced to live in Queensland, there may be an adverse impact on the mother’s emotional and mental health. I accept that opinion.
The mother has always had mental health problems and is currently attending upon a counsellor under a mental health plan once per week. If she was to move to Queensland, that would have to alter. Whilst the family consultant was unsure about the adverse impact on the mother and the mother produced no evidence otherwise, I am left in a position where I can only deal with the evidence provided. Conclusions here arise both from observations and impressions but they also include some evidence to which I later turn provided by the father about documents he said he found in the mother’s possessions about her mental health problems in earlier years. He did not dispute there was a mental health problem. My observations included the mother’s disquiet in answering questions and her unchallenged evidence relating to the mental health plan. I find that the absence of any support system in Australia adds to the mother’s emotional and mental health dilemma. There is evidence of the mother’s brother being a resident of Melbourne but there is no certainty from the mother’s perspective, that will continue.
I find the mother’s mental health is fragile but currently controlled by medication. Despite the father raising it, there is no evidence of her incapacity to adequately care for the child.
Attachment?
The family consultant highlighted the significance of the importance of the child developing a relationship with his father but it must not be forgotten that at his current age, there is absolute reliance upon his mother. The family consultant said:
[The child’s] primary relationship is undoubtedly with his mother and therefore separation from her for extended periods of time, including overnight, given his age and developmental stage, is likely to be distressing for him. Like all children, stability and consistency regarding his significant relationships, and for [the child] at present, this is his relationship with his mother, is essential so that his potential across all aspects of his development, including emotional, psychological, intellectual and social development is not compromised.
Counsel for the Independent Children’s Lawyer submitted that absent regular and concentrated periods of time between the child and his father, the relationship is unlikely to be anything more that superficial at least in the foreseeable future. I accept that submission.
To not address the issue of the mother’s fear and anxiety in circumstances where she is the most important person in the child’s life, must inevitably lead to problems for the child. It was submitted by counsel for the Independent Children’s Lawyer that in terms of the practicalities of whether the mother remains in Melbourne or in the UK, the tyranny of distance either way and the cost of traversing it, will mean that the relationship between the child and the father remains much the same in either location.
Background to the parties’ relationship
The mother was born in 1986 in the UK and she is therefore 31 years of age. She is currently not working and entirely dependent upon Centrelink benefits. The mother does not receive child support from the father but that is a conscious choice by both parties. In the mother’s case, in dealing with Centrelink, she said that it was suggested she apply for an exemption and that is what she has done. In the father’s case, he said that he tried to offer financial assistance but was rebuffed and it was conceded by counsel for the mother that his instructing solicitor had rejected overtures of payment. Whilst I remain sceptical of why that could not be overcome by depositing funds in a bank account and offering the mother unfettered access to it, the reality is that the amount of money would have been modest in any event having regard to the father’s financial circumstances.
The father is 35 years of age and lives in Brisbane where he is employed as a manager but has a modest income depending on how many hours he works. He said it was something over which he had control.
In August 2014 the mother applied for Australian citizenship. That was granted on 26 January 2015.
It was the mother’s evidence that she had always planned to return to the UK and she described her feelings about returning as having been “heightened” after she found out that she was pregnant because she just wanted to be with her family.
The child was born in 2015 and remained in hospital for seven days in the neonatal intensive care unit. The parties have a disagreement about how enthusiastic the father was as a parent but there is no need for me to make findings.
In November until early December 2015, the mother’s parents visited from the UK but even that was not particularly successful in sorting out the parties’ relationship which at that time was strained.
Subsequent to the birth of the child, the mother had no independent source of income and was reliant upon the father. Her evidence was that he had a good income but she would have to ask for money for food and other daily needs for herself and the child. The parties had private health insurance during the pregnancy but she described the premiums being stopped in February 2016. All of that added to her anxiety and unhappiness.
Family violence
The mother gave evidence about the volatile nature of her relationship with the father from the outset of the relationship. Reading the father’s evidence, one would imagine that the blame fell to the mother and that he was the person who tried to calm things. Whilst there were clearly pleasant times amidst the bad, it is important to recall that the total period of this relationship was modestly brief.
There were five violence incidents set out in the mother’s affidavit all of which were disputed. Of the five incidents, three would be described as family violence but the other two as described by the mother, were incidents where the father lacked self-control or more importantly, exhibited aggression.
The May 2015 incident
The first family violence incident occurred in May 2015 when the father “flung” the mother around in an argument and she fell and hit her head. She was pregnant at the time. She asserted the father told her in blunt terms to get to bed. His verbal abusive language was loud, aggressive and unpleasant. She said that during the following day, he apologised. She described herself as scared.
The father’s response was set out in his affidavit (at [18]) where he said that he was getting frustrated because nothing seemed to help settle the mother down when she was very agitated. He described this day as one where the mother became “increasingly aggravated towards him and at home, was in ‘an absolute rage”. The fall earlier described occurred, according to the father, when the mother lost her footing on the stairs and fell. He said she should go and lie down. He went further and denied swearing at the mother or telling her to go to bed (as she described) in any aggressive way.
When the father was cross-examined about this incident, he said that the mother slipped and he maintained that he had done nothing wrong. However, that does not explain his apology on the following day. His explanation for the apology was that he felt bad and that this dispute was a new experience. He added voluntarily that there was no point “butting heads any further”. I am not sure about it being a new experience but he conceded that he had been drinking that afternoon and certainly had commenced before lunch. One of the mother’s concerns throughout these proceedings was the father’s alcohol consumption. His position at trial was that whilst he did drink, he did not do so to excess. The particular incident that gave rise to this first dispute has to be seen in the context of an incident in 2014 when he conceded that he was intercepted by police driving from a hotel after drinking. When challenged in cross-examination about his drink/driving convictions, he dismissed their importance even though he was over the limit. His explanation was that he only got into trouble in 2014 because of his younger and earlier history of drinking and driving. That ignored the fact that he had a reading of .069 per cent and that he was driving at all with two other prior convictions for similar offences. It was concerning that he simply dismissed the seriousness of those events even if his blood alcohol level was not significantly high. It was his cavalier attitude in driving. One must question why, with two prior convictions for drink driving offences, he would be consuming alcohol at an hotel where he had driven his car full well knowing that he was going to drive it home. It would seem that he had been observed by the police so they were simply waiting for him.
The significance of his drinking and driving lies in the fact that it corroborates the fact that during the relationship there were alcohol problems and they were consistent with the evidence of the observations of Ms B to whom I refer in a moment.
There were no independent witnesses to this May 2015 family violence incident but it is the next incident that convinced me to accept the mother’s version of events generally in relation to family violence.
The August 2015 incident
In around August 2015, and obviously pregnant, the mother met the father’s former partner Ms B. Ms B is the mother of Y. That day, Y was with the father in the house under a contact arrangement.
At the end of the day Ms B came to collect Y. The precise circumstances do not matter but at [46] of the mother’s affidavit, in the midst of an argument or discussion between the mother and Ms B, the father intervened, grabbing the mother by both arms, and flung her around. This took place in the presence of Ms B and Y.
On any reading of the mother’s written evidence, the incident was not comprehensively described. In his written evidence at [22], the father described a heated exchange between the mother and Ms B and that it was he who had “tried to calm the situation down verbally”. He said that he told the mother to go inside in an attempt to stop the argument between the two women.
The mother was not cross-examined by the father about this (or any other contentious issue) because he said, the evidence was in his affidavit. But, counsel for the Independent Children’s Lawyer probed the mother. The mother significantly expanded on the detail including specifically the nature and extent of the father’s abusive language. That detail was not in her affidavit.
Ms B gives evidence
Ms B was called by telephone to give evidence. She confirmed that the contents of her affidavit were true. She gave much more detail in her written evidence than did the mother about the father’s abusive behaviour. As with the mother, counsel for the Independent Children’s Lawyer probed Ms B about this family violence incident and a much more complete picture emerged.
The two women had not spoken about the incident (or at least were not challenged as having conspired together) and their respective versions were remarkably similar even down to the unpleasant language used by the father. In her oral evidence, Ms B’s emphasis on the invective was stunningly precise.
Absent some reason to discredit Ms B’s evidence, and the father provided none, this incident as described by both the mother and Ms B, was believable. This incident occurred on the first day the two women had met. At first blush, Y sounded like she was accusing the mother of having hit her. The mother endeavoured to explain to Ms B that the father’s dog had bumped into her giving rise to her then bumping into Y. Y was at that stage four years of age and her language skills were limited but she was also crying at the time when she spoke to her mother at the front gate in the presence of both the mother and the father.
The father’s portrayal here was of two women having an argument over a distressed child. He would have the court find he was the voice of reason and endeavoured to calm the situation. The versions of both of the women are at odds with the father’s version.
I accept the mother’s version of being grabbed by the father and he was unnecessarily and violently abusive to both women.
Ms B has certainly had an opportunity to speak to the mother and to collude about this and other incidents. She has a motive for so doing because of her intense dislike for the father as well as the fact that she is not permitting him to see Y. There are currently contravention proceedings pending in the Federal Circuit Court. However, none of that was put to her by the father nor was it suggested by the Independent Children’s counsel in cross-examination of Ms B that there had been any such collusion. The only evidence of contact between the two women is that they had discussed the developments of their respective children.
On the issue of Ms B declining the father’s time under extant Federal Circuit Court consent orders from 2015, she gave detailed evidence of the father’s alcohol abuse, lateness to collect Y and, at times, his unresponsive attitude to his daughter’s entitlements to spend time with him. The father said that he had not seen Y since late 2016 and that was corroborated by Ms B who said that the last contact was in October. The father said he had instituted the contravention proceedings because of the mother’s defiance of the court orders but it would seem that notwithstanding the last contact was in October 2016, it was only just before this court’s hearing that there was a registrar’s first directions hearing to attend to the preliminary matters so that the contravention case can be heard by Judge Coates to whom the case is apparently docketed.
Ms B’s evidence was that her daughter would be at risk in the care of the father. No doubt his Honour will determine whether the mother’s approach justifies a finding of reasonable excuse. For my purposes, her evidence was unchallenged by any cross-examination by the father.
Ms B said:
(The father) was a drug user, including marijuana, methamphetamine (Ice) and acid. I am aware of the respondent taking a horse tranquillizer on at least one occasion. I frequently found drugs and drug paraphernalia around my house, in my bathroom and in my car. This included packets of Ice and needles openly left out in the bathroom, and accessible by my children.
[6]The respondent was abusive and violent toward me during our relationship and often in the presence and hearing of [Y] and my other children. The family violence included physical assaults, verbal and emotional abuse and financial abuse. The respondent was very controlling.
Ms B then went on to list a range of unparticularised events including abusive language, controlling behaviour, removal of her car keys and telephone, hitting and pushing her and holding her by the throat and screaming into her face.
There is a similarity between the conduct of the father towards Ms B and, to a lesser degree, that complained about by the mother.
Ms B’s evidence was tested only by counsel for the Independent Children’s Lawyer. Counsel pressed for details about the father’s behaviour and Ms B added to the complaints about the father as described in her affidavit. She said that on one occasion, he came to collect Y but six hours late, “stinking of alcohol”. He called her foul names. He turned up at 8.00pm for the apparent purpose of encouraging Ms B to prepare an affidavit for him in the Hague proceedings involving the mother. Ms B said that she declined to do an affidavit because of the father’s behaviour. Ms B described other occasions where the father was slurring his words when she spoke to him on the telephone and on an occasion when he had an obligation to collect Y from a day care, he failed to do so. She described him as losing his licence twice for drink-driving, the last occasion was last year. All of this evidence was painting a picture significantly different from that portrayed by the father but is consistent with some of the things expressed by the mother.
Ms B said that she could not communicate with the father because he became aggressive and abusive. The same complaint is made by the mother.
Counsel for the Independent Children’s Lawyer asked Ms B if things had been so bad why had she consented to orders for contact between the father and Y in the middle of 2015. Her response was plausible. She said at that time, the father was living with the mother and that gave her comfort because in respect of Y, he was doing a reasonable job. She said there was no indication of the father’s drinking but in any event, she observed that it was the mother who was looking after Y when the father had to work and he was only at home on the Sundays.
Ms B said that she declined to allow the father to have access subsequent to Father’s Day in 2016 because she did not think that he was mentally capable of looking after Y. She said it was the father’s own statements about his capacity that concerned her. None of this evidence was the subject of testing by the father.
The evidence of Ms B was contained in an affidavit filed on 26 July 2017 so both the father and his partner (Ms D) had knowledge of what she had said well before the hearing.
The evidence of Ms B about the father’s attendance at her home in December 2016 was disputed. This was the video footage that I rejected as the hearing began. The father was keen for the court to see both video footage and presumably, audio recordings of what occurred. Its relevance to the parenting dispute here was questionable. The father wanted to establish that he was not a violent person to rebut the evidence of the mother. I have inferred that he also wanted the court to find that Ms B was not a credible witness. The difficulty is that none of this evidence was put to Ms B nor had the electronic documentation been provided to the practitioner for the mother or the Independent Children’s Lawyer. Its probative value and in turn its weight, must be marginal.
Apart from anything else, I find it is hardly surprising that the father would not be abusive or aggressive towards Ms B because he was taping the incident. His calm demeanour was corroborated by attending police.
Despite that calm exterior, the concerning aspect is that the father should not have been at the home of Ms B because of a family violence order. Whether there was a justification for the family violence order or not, the father had to comply. There is a distinct correlation with his attitude to drinking and driving.
At [21] of her affidavit, Ms B said the father had sent her messages saying he was “not fit” to have Y and that he was not emotionally stable. These messages were without explanation but as the father did not cross-examine Ms B I have concluded that the messages were sent.
The evidence of Ms D
The evidence of Ms B about the father’s aggression and lifestyle was inconsistent with the evidence of the father’s new partner Ms D. Ms D only saw the good side of the father except in respect of two matters. First, she said words to the effect “we don’t really fight, we say clearly you’re angry – just go” and that when that happened, the father had said to her “when you calm down, contact me”. That can be seen in Annexure 7 to Ms D’s affidavit. I do not know what caused that anger. That evidence was not explored but I find it does not sit comfortably with the written evidence of Ms D that the father had always been respectful and never abusive. Her own evidence would tend to suggest that she was the angry or difficult person in this relationship.
Undoubtedly, there is a distinction between an argument and abuse. The fact that Ms D had to leave indicates that all was not calm in the father’s household. She had seen the father drinking but she maintained his behaviour did not alter so whatever caused her to leave in the argument presumably had nothing to do with alcohol.
At [35], Ms D described the father as swearing “on occasion” but she thought he made a conscious effort to “refrain” when children were present. It is not clear therefore whether the sort of language described by both Ms B and the mother is part of his daily language or only when angered. The limited role Ms D has had in the father’s life does not give me much of an insight as to his conduct.
A second aspect about the evidence of Ms D was that in June 2017, she and the father were having “a small mutual break” due to the pressure and stress associated with all the court cases he had. I have no understanding of that because it was not explored in any detail.
Most importantly, the evidence of Ms B directly conflicts that of Ms D on one significant issue and that relates to their electronic communication in June 2017.
The Facebook communication between Ms B and Ms D
In June 2017 when Ms D and the father had separated, she said she had Facebook communication with Ms B. She produced a sequence of the communications which were in writing. She said this was her initiative.
The electronic communication began with an introduction but Ms D was open about her relationship with the father telling Ms B that she was helping him with his “court paperwork”. The court paperwork to which she was referring could have been the proceedings in this court because in June 2017 the respondent filed an affidavit. But, the conversation was premised on an offer to assist both the mother and Ms B about what “they” were “putting together”. The electronic message said that as she was not seeing the father, she thought she could be of some “help”. Her opening lines had been that she was concerned to know what had happened between the father and both Ms B and the mother because she had not “seen” any of that sort of behaviour. Thus it is evident that Ms D knew about the allegations of others.
At the time of this conversation, the mother was not long back in Australia and the father had not seen the child since late 2016. How Ms D knew of the connection remained unsaid other than the fact that perhaps she had read some of the relevant UK court documents.
The response of Ms B in the electronic communication was to say that she had nothing to say other than that the father was “toxic”. Despite that, Ms D did not give in. Despite her suggestion that she and the father were not “seeing” one another, she sounded very supportive of his position about him having time with his children. Ms B responded saying the father constantly breached orders, harassed and threatened her.
Ms D said she had started her relationship with the father in October 2016 although she had known him for some time prior to that. Thus she must have known of the father’s attendance on Ms B’s home in December 2016 in apparent breach of the family violence order which resulted in him being prosecuted by police. She must have known that in respect of that court event at the local court, he was released on a good behaviour bond. She knew of that incident because at [26] of her affidavit, she referred to advice given to Ms B by a police officer who had attended the house because of the presence of the father there in December 2016. She knew that the police officer had said that the mother could not withhold Y.
It was not suggested to Ms D that she was acting as some form of agent provocateur. The conversation certainly seemed to commence in an entirely inquisitive and innocent way. However, Ms D then mentioned that regardless of what had occurred previously, what was happening was hard on the children. The dialogue indicated that Ms B responded by saying the father did not know what was coming. Ms B was not cross-examined about any of this.
Ms D pressed on and observed that Ms B said that she and the mother would make up stories so that the mother could “go home”. Ms D then offered to help but Ms B replied that she did not need it because she would assist the mother to get what she wanted and in turn, she, Ms B would get revenge.
Ms D asked of Ms B whether what the mother had been saying was true. Ms B is said to have responded:
He never touched either of us.
Absent some evidence to corroborate this communication between the mother and Ms B, I could not find that anything that Ms B said arose from a conversation with the mother.
The dialogue went further with Ms D inquiring about the mother having said that she was pushed to the ground referring to the incident in 2015 between the mother and Ms B. Ms B responded that there was a “big fight” but the “rest” was exaggerated.
Ms D was then seen as becoming defensive about the impact on the children of such a concocted set of allegations and she expressed concern that Ms B was lying in order to stop the father having a relationship with his children. The electronic communication tends to suggest that Ms B simply shrugged her shoulders.
The absence of the testing of this evidence is troubling because in her affidavit in reply to the father’s evidence, the mother said she denied any “fabricated incidents” as Ms D was asserting and denied that she was ever advised by her lawyers in the UK or Australia to do as the father or Ms D asserted namely allege violence. In her evidence which the father had for some weeks, the mother said:
[23][Ms B] has told me that she did not have the conversation with ([Ms D]) as purported in the Affidavits of the respondent (and [Ms D]).
The father made no attempt to challenge the evidence or to produce evidence to confirm there was authenticity in the recorded dialogue as set out in the affidavit of Ms D.
As I explained to the father when the trial began, the court decides disputed facts on the balance of probabilities. I have the evidence of the mother that no-one suggested (nor could they) that family violence was a basis to enable her to succeed in getting to the UK. There is the evidence that the mother spoke to Ms B after seeing these allegations and she denied they had taken place. It remains unclear to me how reliable these screen shots are. It was never put to Ms D that she concocted them. I have no forensic evidence about whether if the conversations did take place, Ms B was being truthful. That is particularly important where Ms B was not challenged about the collusion issue by anyone. Even if Ms B lied, it is not readily apparent how I could attribute her views to the mother when she was not asked anything about any of this. Accordingly, I find the version of the mother’s evidence is the more plausible.
The only time an issue of collusion was otherwise raised was when counsel for the Independent Children’s Lawyer asked the mother about her contact with the father. She said in the Facetime between the father and the child, the father asked her whether she had spoken to Ms B. One might wonder why the father would have asked6 that but when he was cross-examined, he was not asked for an explanation. The father had asked the mother whether she had spoken to Ms B about living in Brisbane and her reply was that she had not. He took the matter no further.
Thus, all of this evidence focussed on the truthfulness of Ms B. I am not dealing with her dispute. Whilst the issues defined in paragraph 11 above highlight family violence and the mother’s fear of the father, the more important issues relate to the mother’s capacity to care for the child having regard to her mental health which is not a new issue for the father. Ms B’s evidence could only be relevant to rebut the father’s evidence about drugs, alcohol and violence. Of those matters, the father said:
[15]I do occasionally have a beer from time to time. I, on extremely rare occasions have had a few to (sic) many drinks. This is not in any way a regular occurrence.
One might conclude that there is some substance to that evidence because Ms B’s view was that with the presence of the mother, the father was not consuming alcohol but then from the time the mother left, his dispute with Ms B was such that he was giving all of the signs of being affected by alcohol.
The mother’s evidence was that there were no signs of drug usage while she lived with the father but that was only for a short space of time. The evidence of Ms B is very powerful in respect of his previous use of drugs. I find however, there is no evidence of his present use of drugs because of the evidence of his current partner.
At [37] of his affidavit, the father said that in the Hague Convention proceedings, no application was made by the mother that the child was at grave risk of harm. That was disingenuous because the Hague matter was not about grave risk but about habitual residence.
Some insight into the father’s view of these issues can be found in his outline of case document. There, he said the mother has a “long-term pattern” of denying the child contact. He said the child had been “violated” by the mother’s alienating behaviours.
Of family violence, the father said:
[26][The child] has not been involved in any family violence nor has any member of [the child’s] family been involved in family violence.
The evidence does not bear out that assertion. The child was obviously not present when the various family violence incidents occurred but Y certainly was. If the father could not contain himself as the mother and Ms B described, and I accept what occurred as they described, there is every reason for the court to be concerned about his capacity to be aggressive regardless of who was present.
The incident involving the mother’s parents
There was a further incident in late 2015 involving the mother’s parents who had come from the UK. Whilst there was no corroboration of this incident by evidence from the parents, having regard to the mother’s credible evidence and the father’s lack of truthfulness based on the findings earlier set out, I have no doubt that he was aggressive and rude towards the parents. The maternal grandmother at one stage criticised the father and he told her that she should take her daughter and grandson away and presumably back to the UK. Clearly that was said in the heat of the moment and not meant literally. In my view, it matters not because it was all indicative of his incapacity to deal with anyone who criticised him.
Family violence is insidious because it is often behind closed doors and children who are exposed to it at a very young age cannot give any adequate description of what has occurred. Here, the court has an unusual situation where it has past conduct asserted by a former partner who was willing to come to court to give evidence and subject herself to cross-examination.
Family violence is defined in as s 4AB(1) of the Act:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
The critical issue here is to examine whether objectively, the fear expressed by the mother is reasonable. I find it is. The fear the mother has of the father exacerbates the problem because she says she has no prospect of communication with the father. He asked her what he could do to assist in overcoming the problem but the way the question was put indicated that he did not accept that he had been a cause of any of the problem. Her response indicated that she saw no immediate solution.
The same problem underpins the issue of what support there is for the mother here in Australia. There is no prospect of any joint parenting nor, anything other than perfunctory communication between the parties.
The mother also gave evidence of three incidents which do not directly relate to violence towards her but they are indicative of the father’s aggression.
The pizza shop, Red Rooster and the doctor’s surgery
Counsel for the mother put to the father that there were incidents outlined by the mother relating to his conduct in which he challenged other people with whom he disagreed. When cross-examined, the father laughed and said that they did not happen. Because I accept the truthfulness of the mother, I accept that they did but I do not accept that they were incidents of family violence.
There was a further incident which the mother said occurred when the father had a dispute with Y’s general medical practitioner over vaccination. The father was asked about that visit and whether he had been banned by the clinic. He denied that was the case but then added that he had not even taken Y to the doctor. I accept that the incident occurred as the mother alleged.
The undisputed language
There is other family violence concerning the father’s abusive language and indeed, he put it in writing. When the mother was in the UK, she asked him for money and he transferred to her $100. Attached to the electronic transfer were the words “get fucked”. He forwarded her a household utility bill and added to the message which was in text form “get fucked you”. When the mother first told him that she was not coming back to Australia in June 2016, the conversation was on a Facetime call. Initially, he hung up on her and she called him back and this time he called her a “selfish fucking cunt” and then hung up. The mother persisted in endeavouring to speak to him but he would not answer. The mother reported that in her Facebook page he described her as a “low life cunt”. A similar message later referred to her along the lines that people should know that she was “the horrible cunt you really are”. The father’s explanation when he was asked why he abused the mother he said he was “very angry”. He added that he apologised and it was “out of character”. I reject that.
There is no doubt that he did apologise in June 2016 because he produced the writing. However, it is the context in which he wrote it that is disturbing. He said that he wanted the mother to feel the same hurt and pain as she had inflicted on him. That is hardly an apology. There is no doubt that the incidents occurred and his language was abusive, unnecessary and in the context in which the communication occurred, frightening. Accepting that he was upset, felt cheated and was angry, it shows his aggression when challenged. It also flies in the face of the evidence of Ms D which depicts the father as a calm, rational and argument-defusing person.
Other issues about family violence
On 16 May 2017, the Suburb E Magistrates’ Court in Victoria made an intervention order against the father in favour of the mother but also named the child as an affected person. The father had not attended but has now appealed to the County Court of Victoria. The intervention order also had something to do with the father sharing the mother’s medical records with the Department of Health and Human Services and a number of other people.
At [127] of the father’s affidavit, he said he did not provide the records as the mother alleged to “belittle” her but rather “as they are applicable to the child”. The relevance was that he considered the mother had a history of self-harm, suicide ideation, irritability, anxiety and anger. Sharing the mother’s records with the Department of Health and Human Services was hard to justify. If the father thought there was some present relevance, he should have sought the appointment of a psychiatrist at the various hearings before this court. Passing around the records without an indication of their present relevance was demeaning to the mother because even if the father was properly motivated, it required the reader to interpret the material.
There is also an irony in the father’s concern to disseminate the mother’s history yet when a subpoena about his criminal history was issued, he objected on the grounds of relevance.
The question is whether or not the father was misguided or malevolent. The recording of phone calls, the attendance at the home of Ms B when there was a prohibition from being there, his conceded pejorative language when frustrated and his reference to his “parental rights” all indicate that he has a strident view that he is right and everyone else should just accept that. I find that it is probable that he was misguided and perhaps thoughtless but all of that militates against any prospect of the mother having a relationship with him in the future in any parenting sense.
The mother’s evidence
Discussions during pregnancy
The mother’s position was that the father promised her during the pregnancy that they would regularly visit her family in the UK and later move there together. The father did not address that issue in his affidavit but simply said that when told of the pregnancy, they “discussed” options and decided to continue with the pregnancy. He said that they were generally happy and excited for the birth of the child although there were disagreements. Having regard to the findings I have made about what happened on a number of occasions during 2015, I am satisfied that the relationship was anything other than happy. That is also borne out by the father’s statement that in June 2016, he discovered “medical paperwork” which detailed a significant history of depression and other mental health issues that the mother had kept secret during the relationship. He was not referring to the mother’s mental health during the pregnancy. As such, it is not contentious that the mother has always had mental health issues. There is no evidence however that she is not adequately, competently and responsibly caring for the physical needs of the child.
The child was born in 2015 in Brisbane. On an occasion when the mother wanted the father to care for the child, she said that he told her he had acquired drugs in order to keep awake. When cross-examined, the father acknowledged the mother’s assertion but it remains unclear whether he was denying the incident. It was suggested to him that he had lost his job over drug usage, an allegation that he denied saying that he resigned. He accused his former employers of asking him to do things which were illegal. The father produced correspondence relating to his employers’ activities but also a letter that he had received from the employers’ solicitors dated 12 August 2016 which accused him of defaming them. The employer later wrote to the mother describing the father’s behaviour as “extremely volatile and erratic”. It was said that he was abusive to customers, suppliers and was not professionally attired. The principal said that contrary to the father’s assertion that he resigned, she terminated the association.
It is impossible to make a finding about drug usage on the basis of innuendo and scuttlebutt. The employer said she had been told by a “reliable source” that the father was taking drugs. Nothing other than the mother’s reference to the comment the father made about the use of “speed” indicates any drug usage. Ms B’s evidence might suggest otherwise and the evidence of Ms D would suggest that she has never seen any of it. The weight to be given to all of that evidence is so low that in my view it would be inappropriate to find that the father regularly used drugs.
The mother goes to the UK
The mother and father had discussions in March 2016 about her travelling back to the UK and the anticipated date was May 2016 with a return in the following August. She purchased a round trip ticket and the father paid for it. The mother said that just prior to leaving for the UK, she and the father “discussed the possibility” that she would not come back to Australia. She said his response was that he would not try to change her decision.
The father’s evidence was that he agreed for the mother to go to the UK with the child for a holiday “to be introduced to family in the UK”. That was an unusual expression because the maternal grandparents had been in Australia in the previous year just after the child was born. The father did not address the mother’s assertion that they discussed the possibility of her not returning but three things convince me that even if it was discussed, he had not accepted the reality. The first was the return air tickets. That supports a conclusion that it was indeed a set holiday. The second is that his angry outbursts in June 2016 when the mother told him that she was not returning, indicates that if indeed the mother had raised “the possibility” of not returning, it had certainly not been set in concrete. The father produced electronic transmissions indicating that he was expecting the mother and the child to be away for 60 days or so and for the house to be a little quiet. He produced a response from the mother which said:
We’ll miss you heaps. xxx
In my view, it does not matter what agreement was reached. I accept the mother was unhappy and wanted to be with her family. That was strengthened by the visit by her parents to Australia in late 2015. It was not disputed that in June 2015, the father had asked the mother to marry him and she agreed. The father produced documentary evidence of wedding plans but all of that was prior to the birth of the child and does not convince me that it makes any difference to whether or not the mother had always wanted to return home.
In March 2016 there was an argument arising from the fact that the mother’s doctor had wanted to discuss with her some blood test results. Reference was made to whether she had AIDS. Whilst it was suggested by the mother that this was said humorously, the father’s reaction in his own words indicates that he did not take it in a light hearted way at all. He said at [30]:
I tried to deal with my hurt and shock and the applicant could not see how her accusations affected me or why I was so hurt or insulted by her accusation. I tried to keep my distance from the applicant and did spend most of the weekend in the garage working on my project car.
In March 2016, the parties went on a camping holiday for ten days. Everyone enjoyed themselves according to the father. The mother did not challenge that evidence but by that stage, it would seem the decision had been made for her to go to the UK.
The day to day care of the child
The father’s evidence was he helped with the care of the child and regularly bathed him once he was “past the fragile newborn stage”. He conceded however that he had not bathed the child because he had been uncomfortable about doing so. His role was limited to the period of time after he returned home. His work hours at that stage were from 7.00am to 6.00pm albeit that it was only close to the home. He was asked whether the mother had been caring of the child during the time that he had been at work and he replied that she had not because when he came home, she was still in her pyjamas and the child had not been feed. He said that as soon as the mother arrived, she went to sleep.
It is difficult to know exactly what happened in terms of the day to day care of the child other than that there was no suggestion of him being neglected nor, despite the father’s assertions about the mother’s lack of care for herself, that the child was inadequately cared for. That must be the case because he was prepared to allow the child to be taken to the UK for two months. It is unnecessary for me to focus further on the particular period prior to going to the UK because it is clear from the expert evidence of the family consultant that the nature of the relationship between the father and the child is not one of attachment.
The father’s relationship with the child in the UK
Facetime sessions between the child and the father occurred although the mother’s view was that the father was more interested in discussing their relationship. It is probably unsurprising that the child could not understand what was happening.
The mother provided a log of communication attempts between the father and the child in August 2016 but at this stage, she had already told him that she did not intend to return to Australia. To the extent that the mother listed those matters to indicate lack of interest in the child, they do not do so. That is because there was little that the father could do bearing in mind the child’s age. What the log does show is that there were constant calls or attempts at calls by the mother. Even there, the father’s aggression can be seen in simple things such as when an argument ensued, he hung up on the mother. All of this enables a finding that there is not only no prospect of a positive relationship between the parents about raising the child or even making decisions about him, but no prospect of that occurring in the future. I find that it would not matter where the mother was living, the prospect of a civil relationship with the father is now not possible.
At [88] of his affidavit, the father said:
I find it difficult to morally reconcile that the applicant has systematically blocked all forms of contact between [the child] and me, prior to the interim court orders and in doing so alienated me from [the child’s] life and denied me the chance to support the child.
The evidence does not support such a conclusion. The father went on to say that the mother blocked him and he would email but rarely get a response. Again, the evidence does not support such a conclusion; it supports the mother’s version of events.
Contact between the child and the father back in Australia
The mother arrived back in Australia on 3 March 2017. Proceedings then began and a telephone link hearing occurred on 10 May 2017. On that day, the father asked to see the child for the first time. No agreement was reached.
On 19 May 2017, the mother offered Facetime contact twice per week but it was on condition that the contact be facilitated by a nominee of the mother. She justified that offer on the basis that there was an intervention order in existence and she found contact with him “stressful, fearful and upsetting”. That proposal of the mother was refused. He did however negotiate that there be a supervisor who was impartial and eventually, the mother’s flatmate became the agreed person.
The first contact between the child and the father occurred on 8 June 2017. Ms F was the supervisor. Ms F and the mother have now parted company and the friendship has not continued. The evidence of Ms F was not tested but it is helpful to the father in that she deposed to the fact that she attended with the child. Remarkably, the child was quite content for Ms F to separate from him and similarly, not distressed when handed back to her.
Three days later, Ms F attempted to facilitate Facetime contact but was unsuccessful on three occasions. A further attempt was then made but it seemed that the father had a problem with his internet.
Subsequent Facetime attempts were generally not successful and most of the discussion seemed to be about when face to face time could take place. Ms Collin’s evidence must be given some weight because it appears objective and the father did not say that what she reported was inaccurate. The benefit that the court has of reading the evidence of Ms F is that it highlights the present and future difficulty in establishing a relationship between the father and the child and that gives rise to the evidence of the family consultant on the issue of attachment. The family consultant’s evidence is set out at the commencement of these reasons and underpins much of the determination.
The father’s view of the mother
I have already set out the details about what each party said prior to the mother going to the UK in May 2016 not so much as indicative of some joint plan to live there but rather as to the nature of their relationship. At [114] and [115] of his affidavit, the father made clear his disdain for the mother such that any prospect of her enjoying a co-parenting relationship in Brisbane would not be workable. In those paragraphs, he set out that the writings of the mother in emails indicated that she had not planned to return to Australia. He said that he could not accept the level of “deceit, manipulation and covert planning” that went into the abduction of the child to the UK. He said he felt like
a complete idiot for being manipulated and deceived to such an extent and not be even a little aware of what was going on and what the applicant had planned to do.
That statement must indicate that he now accepts that in the early part of 2016 including that referred to as the ten days of camping holiday, the mother was always planning not to return. It must be indicative of the nature of their relationship then. It will be remembered that the father’s description of the ten day camping holiday was that everyone had a wonderful time.
In his evidence, the husband described an “extensive history of depression and anxiety” including medication which he had not then understood as an anti-depressant.
The father’s objections to the child living in the UK
The father objected to the child living in the UK because of the cost of travel, accommodation and transport. He conceded that the regular face to face contact between he and the child let alone the child and Y was basically “impossible”. His view was that he could afford one trip every two to three years. Bearing in mind his evidence that he could make a trip to Melbourne every three weeks and that he could increase his work hours to earn more, the suggestion that he could only travel to the UK once every three years was somewhat confusing. He conceded that the prospect of the mother coming to Australia was similarly unlikely.
In respect of electronic means, he said that he doubted that the mother’s family in the UK would be impartial and encourage and support the relationship with the child. He did not mention the prospect of the orders being registered in the UK such that they could be enforceable. Having rejected the father’s evidence that the mother has deliberately thwarted his relationship with the child and accepting that she did make attempts throughout August 2016 on a regular basis for Facetime contact to occur, there is no reason for me to doubt that if orders were made, the mother would comply. It has been the father who has been difficult either because of his unavailability, his internet problems or his lack of desire. I reject the father’s assertion that the actions of the mother “clearly indicate” her future intentions. The real problem in this case is what sort of relationship could be established between the father and the child.
Evidence of the family consultant
I have already set out the views expressed by the family consultant but in cross-examination, she indicated concern that in the period between the child’s birth in 2015 and when he left with the mother for the UK in 2016, his relationship with the father was only just starting to develop. That relationship was interrupted not just by the mother remaining in the UK but by the very fact that the child was to be away for two months. The family consultant said that at that age, electronic communication could not facilitate the nature of the relationship that would otherwise be established on a face to face basis. She observed that frequency was crucial. She said that once per month would take longer for a child like the child to hold the image of his parent in his mind. If it was every two months, the prospect of a relationship developing was unlikely. The sort of relationship contemplated by the father if the mother was in the UK with the child could only be successful if there was a foundation before the child went there.
The family consultant said that having a relationship is to the child’s advantage because it establishes his identity and impacts upon his self-esteem. If that relationship is hindered or compromised, there are many sociological problems including difficulties with learning and achievement, social interaction and possibly mental health problems. It is obviously difficult to predict what is going to happen because the child is so young.
Thus, unless the relationship can be one of frequency, certainty and stability, it is academic how it occurs.
The parties’ proposals
I have already set out the father’s proposed scenarios. As his final submissions progressed, he maintained his position that the mother had no intention to facilitate the relationship with the child and that if she went to the UK any such relationship as existed would be destroyed. The obvious difficulty with that emotive plea is that the family consultant’s evidence is that there is no significant relationship there at present and even if the child was to remain in Melbourne, the prospect of anything developing would be remote. As such, even if the mother was in Melbourne, the child would have to reconnect with his father every time the father attended. That gives rise to the question of how confident the court could be that even if the mother did remain in Melbourne, what the prospect would be of a visit every fortnight or three weeks. The father’s position was that if she remained in Melbourne, he would come to Melbourne to collect the child every three weeks but in his final address, he said that whatever was required he would “work towards it”.
The Independent Children’s Lawyer submitted that whether the child was in Melbourne or in the UK, the financing of trips by the father was the problem in addition to time. He submitted that the child was primarily attached to the mother but acknowledged that the practical difficulties of the father being involved were enormous. He submitted that the mother was vulnerable and that her financial circumstances were not good and that if she returned to the UK, at least she would have family and social assistance. It was submitted that that was significant because it would ameliorate or overcome the mother’s unhappiness and homesickness. Counsel for the Independent Children’s Lawyer observed the father recognised the mother’s unhappiness and homesickness. His proposal of her returning to Brisbane let alone living in Melbourne could never overcome that problem.
Thus, notwithstanding the original submission that the mother should either remain in Melbourne or be directed to attend to live in Brisbane, that was abandoned and the Independent Children’s Lawyer’s position was that this was a case where the child would be permitted to relocate to live in the UK.
The mother’s position supported that of the Independent Children’s Lawyer.
The mother living in Brisbane?
In Sampson and Hartnett (No 10) [2007] FamCA 1365 the majority in the Full Court held that if it was within power to order a person to not relocate somewhere it must be within power to order someone to relocate. However, the court went on to say that the exercise of power in such a situation would be rare because the effect was drastic.
An order forcing someone to live somewhere is an imposition on that person’s freedom. The proper exercise of such power was thought to be rarely invoked because it would only be done to enable another parent to discharge a role as a parent. One needs to examine therefore what role the father would play if the child was to live in Brisbane. Whilst such an arrangement might overcome the problem of the father having a regular relationship to create an attachment with the child, it would not overcome the depression and anxiety of the mother nor her desire to be with her family in the UK.
The potential for the father to enable the mother to financially afford to be nearby to his residence would be dependent upon the regularity of his work. The sums of money contemplated to be paid by the father as child support were modest and the mother would still be dependent upon Centrelink benefits. That in turn affects her capacity to rent somewhere and there is no evidence of what is available in the immediate area of the father. Whilst he said at one stage he had offered to allow her to have his house, I am not sure that that offer was seriously made.
To require the mother to live in an area with those financial uncertainties combined with her fear and anxiety, must mean that the court would be directing her to fulfil a role to enable the father to have a relationship with the child but with penury and unhappiness. An order of that nature is coercive because there is no certainty that it would be of benefit to the child.
Another of the issues associated with such an order from the father’s perspective was that it would enable Y to have relationship with the child. That was predicated on the basis that Y was living with him. There was no certainty of outcome in respect of that proposal.
To force the mother to live in Brisbane to enable any sort of relationship to possibly occur is definitely coercive. In Oswald and Karrington [2016] FamCAFC 152 the Full Court confirmed that the court has the power to make a coercive order although the proper exercise of that power was at the “extreme end” of the discretionary range. It was held that there should exist “rare or extreme factors” for such a discretion to be so exercised. The court went on to say that it was imperative to explore and consider alternatives to restricting freedom of movement particularly where that restriction runs contrary to the parties’ proposals and more importantly, is inconsistent with the primary caregiver’s desire.
Before looking at the alternatives, one has to look at what would be on offer for the mother in Brisbane. The evidence indicates that she has few contacts there. As the father observed, she would not want to “face” those in Brisbane whom, on his view, she had let down. She has a communication relationship with the father’s former partner Ms B but otherwise, they appear to have little in common. She has no better employment prospects in Brisbane than anywhere else. Nothing in the father’s evidence indicated that he could get her a position of employment in Brisbane. In any event, she currently has a day care arrangement in Melbourne which is government funded and which was a 13 week program but her evidence was there was no certainty beyond that. Thus, to move to Brisbane, she would need that avenue if she was to work. On the sort of work she gave evidence about, she could not afford what she currently incurs in the government funded program. In addition, I have no understanding of rental costs.
If the father was paying child support, the mother could not expect significant financial assistance from him. In addition, there are the matters of the mother’s mental health and her fear of the father which I accept are real.
As the Full Court said, a court must explore and consider alternatives to a coercive order. The only alternative possibility might be that the mother remain in Melbourne. Her only relative in Melbourne is her brother and she could not assure the court that he would remain in Australia. She had been living with Ms F but that had fallen apart as a result of the stress that Ms F had been under associated with her own relationship. There is the current 13 week child care financially assisted program but that will come to an end soon. Her financial future is either living on Centrelink benefits or obtaining part-time employment with the child in child care without any apparent economic benefit on the evidence.
In considering the alternative proposition of living in Melbourne, I take into account all of the evidence in relation to the nature of the relationship between the father and the child and based on the expert evidence of the family consultant that frequent and at this stage, weekly contact between the child and the father would be necessary to establish a meaningful relationship of attachment. The father’s best proposal was every three weeks.
I find in the circumstances that there is no alternative proposal that would enable the child to have a meaningful relationship with his father and accordingly, requiring the mother to move to Brisbane to enable that to occur would not only be coercive but oppressive. In my view, there is no basis for the coercive order here.
Approach to relocation
As the authorities indicate, the Act does not distinguish cases about the international relocation of children from other parenting cases. Part VII of the Act applies.
The law to be applied was considered in McCall & Clark [2009] FamCA 92 and the requirement that the legislation be followed was reiterated. That is, when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child. That requires consideration of whether that presumption is rebutted or found not to apply. If the presumption applies, the court is required under s 65DAA to consider a child spending equal time or if not, substantial and significant time with each parent.
That latter provision requires a consideration of the proposals of a party to relocate a child insofar as there are advantages and disadvantages for the child. That in turn requires consideration of the various factors in s 60CC.
As was observed in Taylor & Barker (2007) FLC 93-345 :
In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
One consideration in s 60CC is the benefit to the child of a meaningful relationship with both parents. It is undoubtedly difficult to assess any such benefit when, from a prospective point of view, there is no extant relationship. That in turn gives rise to the question of whether such a relationship could be established, relevantly here, by the mother remaining in Melbourne or moving to Brisbane. The latter objective might be achieved but at what cost to the relationship of the mother and the child? As I have rejected the practicability of such an order, there is little point in considering whether the child could benefit in that way.
As discussed by the Full Court in McCall & Clark[2009] FamCAFC 92; (2009) FLC 93-405, the preferred interpretation of the benefit to a child of having a meaningful relationship with both parents is the “prospective approach”. That focuses on the evidence about what currently exists and what could be done to create something in the future.
The court is also obliged to consider potential adverse consequences for the child if he did not have an opportunity to develop that relationship. The evidence of the family consultant addresses that above.
Could a meaningful relationship be established such that the child might benefit if the mother remained in Melbourne? This question raises the issue of not just the prospective approach to such a determination but also the requirement to predict what would happen if she did remain.
In U and U [2002] HCA 36; (2002) 211 CLR 238, the High Court examined an international relocation judgment (and appeal from it) of this Court. One of the grounds of appeal to the High Court was that the trial judge, and the Full Court, directed their attention primarily to the short-term welfare of the child and thereby neglected consideration of her long-term welfare. Although not articulated as such, that is what the father argues about the child.
Of that particular ground of appeal, Gummow and Callinan JJ with whom Gleeson CJ and McHugh J separately agreed said that of a submission that the trial judge gave too much weight to the child's short term welfare, and commensurately too little to her long term welfare, that was no more than a complaint about the weight which the trial judge attached to admittedly relevant considerations. Their Honours said:
Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one.
Within that discretion however, the court must be conscious of the “legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children” (see Goode and Goode [2006] FamCAFC 1346; (2006) FLC 93-286). For the reasons I have already set out, there is little prospect of that involvement being significant. In addition, the court has to be mindful of how those principles affect the best interests of the child. Significant involvement in a child’s life is one of the s 60CC considerations but no one factor has greater weight than others (save perhaps the conflict described in s 60CC (2A)).
There is a risk to the child because of his mother’s health and her need for support. The unchallenged evidence is that the child relies absolutely on the mother. Whilst there is little expert evidence about the impact of her problems if they continue unabated, I do have the father’s own views about what happened to the mother as he observed when he considered her mental health. In the pregnancy, he described the mother as depressed and unable to cope to the point that she did not get out of her pyjamas and did not feed the child but just went to bed as soon as he came home. He produced into evidence, by attaching them to his affidavit, the mother’s medical records going back to her teenage years showing the physical state into which she descended when affected by her mental health problems. He pointed to her use of medication which he considered she had not adequately explained to him. Thus, on his own evidence including the concession that she is unhappy and homesick, he well knows of the problems and the possible consequences for her. It must therefore follow, there may be problems for the child. He considers his relationship with the child takes precedence over that.
As against the immediate need for a resolution, there is the father’s view that the child should remain in Australia so that a meaningful relationship can be developed. But even there, on the basis of the unchallenged view of the family consultant, I remain sceptical about the prospect of an attachment relationship forming.
Absent the protection of his mother’s needs, it must follow that there is a risk of emotional harm if not physical harm to the child’s welfare and development. In my view, there is nothing in Melbourne for the mother for the reasons earlier set out that would enable me to find that the child’s development would thrive if she was prevented from returning to the UK.
Thus in terms of prediction, the real and present risk to the child remaining in Melbourne are outweighed by the long-term benefit he would have of being in the UK even if there is no substantive relationship for the foreseeable future with his father.
I accept that the father would have great difficulty in moving to the UK to live. He points to Y but even there, I have no understanding of what his future relationship will be with his daughter. To the extent that the child would miss out on that sibling relationship, I consider in terms of prediction and weight, that at his vulnerable age, and his dependence upon the mother, his sister’s relationship is less significant than it might otherwise be if everyone was seeing each other regularly.
As for what is in the UK for the mother and hence the child, apart from the prospect of her mental health being improved, the unchallenged evidence is that she would benefit by financial assistance from her family including a prospect of employment under which her mother could assist, without cost, in the care of the child. That same financial assistance is not available here in Australia and I remain sceptical about the father’s capacity to provide much even if the mother accepted what he was offering.
I find the assistance of childcare in the UK is significant having regard to the child’s age.
I stress that although I have made findings adverse to, and critical of, the father, this determination is not about him being an inappropriate parent (see Grella & Jamieson [2017] FamCAFC 21 and M & M(1988) 166 CLR 69) but rather which of the proposals will best meet the child’s needs. That determination has been made on the evidence presented and on the balance of probabilities. It also takes into account that all parents enjoy the right to live where they choose but that right must defer to the expressed paramount consideration, the welfare of the child, if that were to be adversely affected by a movement of a parent. Thus, the balancing of proposals here is about the child’s future rather than just that the mother desires to go “home” to the UK. I find there are tangible benefits to the child in living in the UK.
The statutory matters
The court is still obliged to consider the other statutory matters including the best interests’ principles as set out in s 60CC.
Section 61DA provides that when making a parenting order, the court must apply the presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility.
That presumption does not apply if the court is satisfied that a parent has engaged in family violence. I have made that finding and as such, the presumption does not apply. Even if there was some doubt about that finding, the presumption may be rebutted if the court is satisfied that it was not in the child’s best interests for the parents to have equal shared parental responsibility.
That finding would be made here as the parents do not communicate and I accept the mother has a fear of anything close to communication. She distances herself from electronic communication because the father asks her about herself rather than about the child. She points to the abusive language of the father when, as he conceded occurred when he was angry, she was in the UK.
I would further point to the father’s evidence that he considers her to be untruthful and alienating of his attempts to have a relationship with the child. There is little prospect that any co-parenting here could operate.
The presumption should therefore not apply and it is therefore not necessary to consider s 65DAA.
Section 60CG of the Act requires the court when considering what order should be made, it must be consistent with any family violence order and which do not expose a person to an unacceptable risk of family violence. Having regard to the definition of family violence as earlier set out, I consider that because of the child’s age and the need for the mother’s involvement in ensuring some form of contact occurs, there is a need to ensure that the father does not behave inconsistently with the intervention order. I was informed that the father had appealed against the magistrate’s order but since the end of the hearing in this court, no further information has been provided by anyone. I have concluded that the order remains extant.
It is important that the mother not be subjected to written or verbal abuse more so than physical violence. Any Skype or telephone conversation must be between the child and the father; it will be up to the father to ensure that he maintains the child’s active interest. The mother’s obligation will be to facilitate that arrangement but not to participate beyond that.
I intend to make a parenting order here so there is a need to consider the matters in s 60CC.
I make the following findings drawn from the evidence and discussion above:
·There is a need to consider the child having the benefit of a meaningful relationship with the father but that is neither practical or possible on the father’s proposals;
·There is a need to protect the child from being subjected to the abuse of his mother but the orders I propose will enable that possibility to be reduced although I cannot entirely eliminate it;
·The child is too young to have a view about any orders;
·There is a very strong attachment relationship between mother and child but none between father and child. The fact that such a dilemma may have been orchestrated, created or manipulated by the mother is irrelevant to the fact that the dilemma exists. I take into account that the father had no difficulty in the mother taking the child to the UK and even though it was seen to be for 60 days, at the child’s then age, that was an important period of his development. Sadly, there is no possible way on the evidence that the dilemma can be alleviated for the foreseeable future;
·The father has endeavoured to have a relationship with the child but I remain uncertain as to why he did not take active steps after the mother’s return to Australia until proceedings had begun;
·There is no doubt that a separation of the child from the father either in Melbourne or in the UK will create a barrier to the development of a meaningful relationship but the father gives no guarantees or any certainty that he can do more than visit every 3 weeks in Melbourne and as the expert says, that will not resolve the dilemma;
·A separation from the mother would be deleterious to the child and although contemplated by the father, was not actively pursued;
·I have doubts about the capacity of the father as a parent. His opportunities have been limited. Throughout the time that the parties were together, the mother was present on all but three occasions. The evidence of his parenting of Y was not of much assistance because when he had her, the mother was present. The evidence of Ms B, which he disputes, indicates that he has not had a consistent role even allowing for his complaint that Ms B has been consistently in breach of the orders. His parenting of Y ended a year ago. I therefore have no understanding of his capacity other than from the evidence of Ms D who says that he is a good role model in her children’s lives. Even so, that role has been limited because the adults do not live together.
·Assessing the attitude of the parents towards the responsibilities of parenthood has been difficult here. The father has had limited opportunities to show a sense of responsibility. Being a role model and fulfilling social responsibilities has a role to play here. The father says he has not been abusing alcohol yet there are his convictions for drinking and driving. There is his denial of abuse and aggression yet there is his admission that he used language for which he later apologised. His explanation in writing was that the mother should understand his anger having regard to what she had done to him. There is the intervention order and its basis in distributing the mother’s private materials which at the time had no relationship to the then parenting dispute. All of these things raise questions about the father’s level of responsibility as a parent because they are issues that have ultimately restricted his ability to have a significant role in the child’s life.
·The attitude of the mother in abducting the child once she was in the UK should be decried except that I accept there was little for her to commend staying in a relationship with the father; combined with her mental health issues, it is hard not to accept that she needed support. She got none from the father. As a parent, nothing was said to show she is not managing the child’s daily needs. Nothing in the family report indicated that the child is not thriving in the mother’s care;
·Family violence does not need further consideration because of the findings above.
Section 60CC requires the court to consider whether an order should be made here of an interim or permanent nature. I have contemplated an interim order requiring the mother to remain in Melbourne until the child develops some form of attachment to the father but as I have already indicated, I have no confidence that the father will or can maintain the pace that would be required of him let alone what he was offering. As such, any relationship would not enable the child to feel secure in spending significant time away from the mother in the foreseeable future. Final orders are therefore the only option here so that the mother can obtain the support I accept she needs and along with regular electronic communication, the father can endeavour to spend time when he is able to. The child will at least come to know and recognise the person as his father and it will be up to the parents together to ensure that the relationship is the best that can be sustained.
I find that the orders at the commencement of these reasons are in the child’s best interests.
I certify that the preceding Two Hundred and One (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 October 2017.
Associate:
Date: 17 October 2017
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