Remmick and Ricci
[2014] FCCA 92
•5 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REMMICK & RICCI | [2014] FCCA 92 |
| Catchwords: FAMILY LAW – Parenting dispute – four year old child – whether mother should be ordered to relocate to Queensland, where father lives, from Victoria – mother’s significant problems in parenting – mother re-partnered with further child – mother primary carer of child – orders to live with mother and spend as much time as practicable with father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA(1), 61DA(2), 61DA(4), 65DAA |
| Jones v Dunkel (1959) 101 CLR 298 Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS REMMICK |
| Respondent: | MR RICCI |
| File Number: | BRC 9084 of 2011 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 28 & 29 October 2013 |
| Date of Last Submission: | 29 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2014 |
REPRESENTATION
| The Applicant: | Mr Remmick (the applicant’s father by leave of the Court) |
| Counsel for the Respondent: | Mr Gates |
| Solicitors for the Respondent: | Cathleen Corridon & Associates |
ORDERS
The parents have equal shared parental responsibility for the child, X (“X”) born (omitted) 2010.
In the exercise of this equal shared parental responsibility for X the parties are to consult with each other in respect of all major long term decisions pertaining to X, which include but are not limited to issues concerning the following:
(a)X’s education (both current and future);
(b)X’s health and special needs;
(c)Any changes to X’s living arrangements which significantly interferes with the operation of these orders, particularly with the specified arrangements for X to spend time with each parent.
That X live with the mother and that the mother be permitted to live with X in Melbourne.
Until such times as X goes to school the father spend time with X as follows:
(a)For five (5) days and four (4) nights every third month.
(b)That the (5) days and four (4) nights include a weekend.
(c)Notwithstanding (a) for Christmas and Boxing Day in even numbered years with the father in Brisbane and odd numbered years with the mother in Melbourne.
(d)Notwithstanding (a) for Easter from Good Friday until Easter Monday in odd numbered years with the father in Brisbane and even numbered years with the mother in Melbourne.
(e)Notwithstanding (a) for X’s birthday in even numbered years with the father in Brisbane and odd numbered years with the mother in Melbourne.
When X starts schooling the father spend time with X as follows:
(a)For seven (7) days and six (6) nights for all events listed in sub-clauses 4(c), 4(d) and 4(e) inasmuch as these events fall during the Victorian School Holidays.
(b)During the Victorian Term School Holidays for one week every Term and in the event of a Public Holiday falling on that week to include any long weekends (such as Labour Day, Queen’s Birthday and Anzac Day).
(c)During the Summer Holidays:
(i)Until the Long School Holiday commencing December 2017, for one week at times to be agreed;
(ii)Thereafter for half of Long School Holidays at times to be agreed; and
(iii)In any event to include such time as is spent pursuant to order 5(a).
That the mother pay for the cost of travel and facilitate X’s return flights from Melbourne to Brisbane and return on the first occasion and each alternate occasion thereafter of X spending time with the father, the father pay for the costs of travel and facilitate X’s return flights from Melbourne to Brisbane and return for each intervening occasion.
(a)That the mother shall pay for the costs of her own flights on each occasion if X requires accompanying travel from Melbourne to Brisbane.
(b)That the father pay for the costs of his own flights on each occasion if X requires accompanying travel from Brisbane to Melbourne.
(c)Should either parent need to change any of these arrangements they must notify each other within fourteen (14) days of the commencement of time to be spent to enable changes to travel arrangements.
(d)Additional costs associated in making changes to travel arrangements to be borne by the parent making the change.
(e)Changes to travel arrangements cannot encroach on school times.
(f)Changeovers to occur at the Melbourne Airport or Brisbane Airport.
(g)As far as practicable the child is to arrive at Brisbane no later than 2.00 pm and return to Melbourne no later than 5.00 pm.
(h)Each party is to provide the other with 4 weeks’ notice of the dates of intended travel.
That the mother and father be at liberty to contact X through:
(a)Telephone
(b)Skype or
(c)Email
at times as agreed between both parties and failing agreement every Tuesday and Sunday between 7.00 pm and 7.30 pm when X is not otherwise in their care, and the party caring for X shall facilitate such communication by ensuring the availability of X, with the other party to initiate contact with X and for the purposes of this order the parties shall keep each other informed at all times of their landline telephone numbers, mobile telephone numbers and email addresses.
(d)That the party not caring for X (at that time) shall be at liberty to Skype with X on Christmas Day, Father’s/Mother’s Day, the parents birthdays and X’s birthdays at a time agreed between the parties and failing agreement from 10.00 am until 11.00 am and if a school day between 7.00 pm and 7.30 pm.
(e)All times to be at Australian Eastern Daylight Time (AEDT) in the summer months, and the Australian Eastern Standard Time (AEST) in the winter months.
(f)Should telephone time not occur in accordance with these Orders, then makeup telephone time shall occur the following Saturday between 7.00 pm and 7.30 pm.
That X be at liberty to initiate a call to each parent when in the care of the other parent and that the caring parent shall do all things necessary to facilitate such telephone communications forthwith.
That in the event of X suffering a medical emergency requiring medical attention while spending time with either parent:
(a)The other parent is to be notified as soon as practicable.
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends and as soon as practicable.
(c)The medical practitioner or medical facility be advised that the other parent has access to the child’s records and the information obtained with them upon request.
(d)That this in no way impedes either parent’s ability to determine the best treatment for X based on the medical opinion available at the time of an emergency.
That each party is hereby authorised to obtain from X’s school all notices, letters, school reports and invitations and attend activities to which parents are reasonably expected to attend.
That the parties advise the other of any change of residential address not less than fourteen (14) days before such change.
The parties each be restrained and an injunction issue restraining each of them from abusing, denigrating or rebuking the other party in the presence or hearing of X or permitting any other person to do so.
The parties each be restrained and an injunction issue restraining each of them from discussing any aspect of these proceedings with X, or permitting X to see any documentation filed in these proceedings.
The mother engage with a Family Support Service in Victoria.
The mother and the father separately attend a Post Separation Parenting Course.
THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Remmick & Ricci is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
BRC 9084 of 2011
| MS REMMICK |
Applicant
And
| MR RICCI |
Respondent
REASONS FOR JUDGMENT
This is a parenting dispute about a young girl, X who was born on (omitted) 2010. The applicant mother seeks that X live with her and her partner, Mr P, and her child with Mr P, Y, born (omitted) 2012 in Victoria.
The father, Mr Ricci, seeks that X live primarily with him and spend time with the mother, whether she lives in Queensland as he would desire, or in Melbourne. The father’s alternative position is that the mother should be ordered to live in Queensland in any event whether she remains the primary carer of X or not.
For the reasons that follow I am going to make orders substantially as sought by the mother. I am not going to order her to relocate to Queensland.
Some Agreed Facts
The mother was born on (omitted) 1991 and is approaching her 23rd birthday. The father is not much older, having been born on (omitted) 1988 (various dates are given throughout materials). He has just reached his 25th birthday.
Various dates are given as to the commencement of the relationship between the parties, but it appears to have been either in late 2008 or early 2009. X was born six weeks premature on (omitted) 2010 and the parents married on 4 June 2010. They separated on 17 August 2011.
In the mother’s first affidavit filed 8 March 2012 she deposed that she relocated to Victoria in the (omitted) area in August 2011 consequent upon a new relationship with Mr P, an (occupation omitted) whom she had met in Brisbane. That is not the only version of the events of their meeting. But on any view, Ms Remmick did indeed return to Melbourne and on 8 March 2012 the mother filed an Application for parenting orders. Those proceedings effectively lapsed.
In April 2012 the mother relocated back to Queensland with X and Mr P. Although it is not an agreed matter, it seems more probable than otherwise that she did so, as she says, in order to access the assistance of her family, all of whom like that of the father live in Queensland, with the forthcoming birth of Y who as noted above was born on (omitted) 2012.
In February 2013 the mother, Mr P, X and Y returned to Melbourne, but the mother planned a return trip to Queensland for an operation on 10 May 2013. Whatever the reason the child was over-held during a period of time with the father in May 2013. In June 2013 interim orders were made by consent that X should return to live primarily with her mother in Melbourne and that the father would have time twice weekly by Skype and five days and four nights every third month in South East Queensland.
The Evidence of the Parties
I have of course had careful regard to all the affidavit material filed. The applicant was represented by her father who despite legal qualifications was not technically entitled to do so. I permitted this course of action because it was apparent in the face of the mother’s demeanour that she would be utterly unable to represent herself. With the father and his father having come all the way from Queensland for a hearing it was obviously inappropriate to adjourn.
The mother’s representative also pressed a Notice of Objection to a Subpoena directed to the Department of Human Services (“DHS”). I overruled that objection because on reading the material it was plain that it was potentially relevant to the matters in the proceeding.
What follows is a recitation taken from my notes. It does not purport to be transcript but I am satisfied that it will sufficiently accurately paraphrase the evidence given. It should be noted that I have of course recorded those matters which strike me as being of significance rather than seeking to traverse each and every matter the parties asserted.
The Evidence of the Mother
In evidence-in-chief the mother confirmed her date of birth, her address in (omitted) and that she was unemployed. She adopted her affidavits as true and correct. She confirmed X was born six weeks premature and has been away from her for only three occasions. She had a holiday of eight days in 2011. She spent three days with the maternal grandparents during the currency of the wedding. And she has also been over-held by the father for five weeks (the over-holding already referred to above).
The mother was also taken to the family report and the passage at paragraph 19 which records that she was placed in foster care at the age of 13 years. The mother said she was not aware why she was placed in care but assumed it was a last resort on the part of her family. She said she was 15 at the time not 13. She said that she was simply not good in that period. She commented, “I was stealing, truanting and self-harming.” She said she had ended up in a psychiatric hospital but that she was not like that now. She said she underwent counselling until she was 17 which helped her to get better and had not been on any medication since.
She confirmed she had come to Melbourne following the separation with the father and that she had used marijuana during this time which she described as a really bad patch. She said she had tried to wait until X was asleep or otherwise in care before she smoked. She said she stopped smoking after four months. She realised she had made a really stupid decision and saw that she needed to change.
In respect of her return to Brisbane in April 2012 she said she did not try to avoid the Child Protection authorities in Queensland and that their file was being closed. She was pregnant in April 2012 and wanted to be with her family and stayed with her parents for about three to four months. After that she was living with her partner, Mr P, and their finances were in a parlous state.
By February 2013 their position was one of financial meltdown. They had lost a bond. They moved back in with her parents. Mr P had been unable to obtain work in Queensland and they decided to move to Melbourne.
She called the father the night before the move to tell him what she was going to do and promised to return in three months. She confirmed that she had a strong attachment to Mr P.
The Mother’s Evidence under Cross-Examination
The mother was cross-examined about the number of visits she had had from DHS and said that she could remember two. She conceded that DHS had attended on occasions when she was not present also. She said the first visit was not more than one hour and the second was short, about half an hour. She said there had been no contact from the Department of Community Services in Queensland about X.
She conceded that there was no mention of drug use in her affidavits and said that she had not thought it was necessary to mention it.
She conceded that the police had been called about Mr P on a small number of occasions. None of these calls were for domestic violence although on one occasion she and Mr P had had an argument. X had been in her room at the time and had probably been distressed about this. The mother confirmed that she has difficulty with her memory and at the time of the arguments to which she referred she was not in a good way. This was towards the end of 2011 or early 2012. At least one of the arguments with Mr P had been about drugs. Mr P has never used drugs. Friends of the mother’s were using drugs and using marijuana and this was what the problem was. The mother confirmed one isolated incident upon which she had used heroin and that that was in the file. She had not told the family report writer about her heroin use. She denied ever using amphetamines. She was unable to recall when she last used marijuana but confirmed it was in 2013. She said she had buckled under the pressure on one occasion this year and that was when she used the drugs.
She confirmed she had spent a lot of money on drugs between September 2011 to January 2012. She said she was not however working in a brothel at that time, although she conceded she had worked in a brothel. She denied taking shifts that ended at 6.30 am. She said she worked at a brothel commencing in late 2011 until a date she could not now recall but she thought that she had worked for about two months.
She said that friends were giving her drugs before that but Mr P did not know. She said that she was not aware she was pregnant when she was using marijuana. She had taken anti-depressants in January 2012 which made her initially feel better but she had not continued with them after about a month.
The mother confirmed that she does write suicide notes from time to time but said that she did this as a coping mechanism. She was unable to say, when cross-examined about hospital records, if she had spent overnight in the hospital. She was cross-examined as to how she met Mr P and denied meeting him on a dating website. She was not sure when she first spoke to Mr P but it was in Victoria.
The mother was cross-examined about events in January 2012 and she said she found that this was a very stressful time for her. She confirmed a history of self-harm and that she had self-harmed as an adult, “cutting herself”.
The mother confirmed she had made allegations of sexual abuse as a teenager and had been hurt a lot. Indeed the mother’s emotions were so clearly overwhelming her at this point that I directed counsel to cease cross-examination of her about the history of her sexual abuse and as to how she had met Mr P, who it appears she may have met when she was working in the brothel (which it would seem places that event in late 2011 to early 2012).
The mother repeated her denial that she was working in a brothel with shifts that finished at 6.30 am and believed that the report by DHS to that effect was inaccurate. She did not however deny a record that showed her getting up at 2.00 pm, because she was getting only three to four hours sleep and was isolated because her partner was working long hours.
The mother confirmed that she had good relationship with her extended family in Queensland and that if she stayed in Victoria those relationships would be limited. She confirmed that she had a good relationship with her partner and his father.
The mother gave evidence about the difficult financial circumstances she is in. She has EastLink and parking fines and fines for unlicensed driving. She was speeding in Sydney while relocating to Melbourne, driving unlicensed in an unregistered car. That fine has been paid but there are outstanding fines arising from Queensland and in Victoria. In fact the mother has never had a driving licence or sat a test. She is in the process of seeking to do so. She conceded that she had driven a lot with X in the car in the past, but not in the last year.
When cross-examined about other correspondence from (omitted) Health referring to somebody called Ms R, she confirmed that she has never known somebody called Ms R and that she has not had a cousin killed in a car accident, nor had any problem with alcohol. She maintained that the correspondence about her from (omitted) Health in this regard must have been a mistake and referred to someone else.
The mother was cross-examined about DHS records relating to November 2011 which she confirmed was a bad time for her. She had been so scared she did not know what to do.
When taken to the letter from (omitted) Health dated 13 January 2012, the mother remembered speaking about childcare. She said the child was in childcare soon afterwards. She denied working in brothels until 6.30 am and said that brothels are simply not open until 6.30 am early in the week.
The mother confirmed that she received the sole parent’s pension until about December 2012, having started when X was born. She confirmed that she lived with Mr P or the father throughout the period she was receiving the benefits and that she had been investigated by Centrelink as a result.
The mother confirmed that she had attended mediation but was critical of the father’s lack of cooperation in this regard. The mother asserted that the father’s concerns about her were not really genuine. She confirmed she had changed her phone number a lot and had recently moved to a different network carrier but had not told the father this because he could contact her by Facebook.
She confirmed that she was party to a lease until 2014 which she could not readily break.
She confirmed that she was prepared to contribute to the cost of X’s travel and that her partner is working fulltime. He leaves about midday and gets back early in the morning. He is involved with X in the morning and at weekends. It emerged that this employment was very recent but is making approximately $1,200 per week which pays the rent and bills. She had thought he would get work in Queensland also but he was not able to do so.
The mother confirmed that she had left X with the paternal grandparents six or seven times and that she has all the assistance her parents can give her.
Tellingly the mother said Queensland has a lot of bad memories for her and that she is a better person being away from there. She says she could not take living in Queensland and that even if she separated from Mr P she would still prefer to live in Victoria. She proposed that X should go to Queensland every three months but that she could only afford to pay for this once every six months. She said that X should spend no longer than one week in Queensland as recommended in the Family Report.
She said that the father was fighting these proceedings to get back at her and did not really care if X was not there.
Nonetheless, the mother confirmed that X really loves her father. X commenced calling Mr P, “Mr P”, but transitioned to, “dad”, and said that she referred to “daddy Mr P” and “daddy Mr Ricci”.
The mother confirmed that some of Mr P’s debts have now been paid off and that they have paid off the loans they took out to move to Queensland. She said she had always intended to return to Victoria as a last resort in the event that Queensland had not worked out. She confirmed that she waited until the last minute before telling the father she was going to Victoria because she was scared of his reaction. The mother said that the father does not call X and he was simply a front for his family.
The mother was forced to concede that she had made contact difficult for the father by changing her phone number and not providing her current address. She confirmed that she cannot communicate with the father.
The mother confirmed that she is not seeing a psychologist now and that her last contact was with a Dr F (name not entirely clear) in January 2012. She does not seek help for fear of being penalised. She has not told X that she now uses the surname ‘Mr P’ but has facilitated X calling Mr P “dad”. She confirmed that the father facilitated telephone time with her when X had been with him.
In re-examination the mother continued to assert the letter from (omitted) Health to the Department of Human Services dated 17 January 2012 was not about her. She conceded that she had been impulsive when she moved to Melbourne and that this was wrong and said that she had visited the father to make up for it. She confirmed that discussions about more time with the father when she had been in Queensland had been unproductive.
The Evidence of the Father. In-Chief
Mr Ricci is unemployed and is a student at the (omitted) University. He is supported by the disability pension and confirmed his affidavits as true and correct. He confirmed that before the hearing in Court he had only heard hearsay as to the applicant’s drug use and that he had known nothing about the mother’s mental health issues. He confirmed that he wanted the child to live in Queensland, preferably with him, although he appreciated that separation from her step-sibling would be painful.
He said he did not call the mother because he was scared of arguments and did not want X to see or hear arguments. He was usually unable to agree with the mother.
He confirmed that he had always changed the child’s nappies when she was with him and asserted he was the primary carer. He said this was the case when X was with her paternal grandfather from time to time. He lives with his mother and there is a room set aside for X.
The Father under Cross-Examination
The father confirmed that he has neuromuscular dystrophy but has not sought treatment for it. The only treatment is to constantly use his muscles. He said that he used to play sport and that keeping up with a two year old was the best possible treatment. As he understood it his condition involves the deterioration of his muscles more quickly than that of a usual person and that his condition inhibits muscle growth. This provides limits to what he can lift. 25 kilos would be a struggle but not impossible.
The father described his daily routine including extensive use of his computer. He confirmed that his income is $750 per fortnight of which he gives $100 to his mother. He has to pay for a mobile phone also and still owes money relating to a rental property in Queensland of some $360. Indeed he asserted the mother does too. He has various bills coming in from time to time.
The father confirmed he felt betrayed when the mother left him and he is still angry about this. He said he contacted the Department of Human Services after allegations were made because this was the only thing he felt he could do.
The father confirmed that the mother had sought that he sign various documents. He thought that her reason was so he would not run off with their daughter. He said X was very happy to see him and that he had played with her in a playground and walked around the park. Effectively he had seen X alone at (omitted). He said he had refused to sign the mother’s proposed agreement because he would lose any right to participate in decisions about X. The father gave evidence about the generally unsatisfactory endeavours between the parties to arrange for time to be spent in Queensland.
The father confirmed he had been in Melbourne since 25 September 2013 and had seen X twice during this time. Once was during the family report interviews and the second time was in the following weekend at McDonald's (omitted). The father confirmed that he has no transport of his own in Melbourne.
The father confirmed that he had consented to the Court orders by which X had been returned to her mother but as set out in his affidavit he very much regretted this decision which he asserted was made under pressure. Without traversing the evidence in detail the father confirmed that he was well able to look after X should she be in his care.
The father was cross-examined about some inappropriate communications but in my view nothing turns upon these matters. The father confirmed that some inappropriate images which were on his computer had not been seen by X.
The father confirmed that he has a temper but said it is not short. He says he walks away from confrontation. He said he had on occasion become angry and yelled at the mother and walked away. The father asserted he has not seen the baby Y.
The Evidence of Mr Ricci the paternal grandfather
Mr Ricci adopted his affidavit to be true and correct. He said that X has stayed with him some seven to eight times during her first year of life and that the mother had then disappeared coming back thereafter intermittently. He said that when the mother returned to Queensland X stayed with him. He said that when he knew he was going to be having X he would tell the father who would come and stay. He saw X and the father together and assisted in X’s care.
Under cross-examination the quantum of time that X had spent with Mr Ricci was put in issue. In my view Mr Ricci’s evidence did not take the matter much further.
The Family Report of Ms W
Ms W has prepared a family report dated 16 October 2013. She adopted her report. Under cross-examination by the mother’s representative Ms W confirmed that it was best that X stays primarily in the care of her mother.
Cross-examination by counsel for the father concentrated naturally enough upon the various things that Ms W had not been told. Ms W confirmed she was not interested in the parties’ finances. She had not had access to DHS reports and had asked the mother about her drug use. She had given her the impression that she used marijuana and prescription drugs but had not stated that she used heroin.
The mother had told her that she had used drugs for four months and then stopped. This was during a very difficult time but she had got better thereafter. The mother had not told her that she had used drugs in 2013 but had disclosed anxiety/depression as a teenager but said not since the age of 17.
Ms W said she had not been told about the psychiatric incident in 2012 although the mother had talked to her about suicide notes she had written in the past. The mother had not described self-harm and Ms W was surprised to hear of it occurring in 2013.
When it was put to Ms W that the mother had asserted she had not willingly participated in reports to avoid penalisation she replied that this was a very common response and a concerning one.
The mother had not told her that she worked in a brothel and had said there was only one visit from DHS. Ms W accepted that there was more than one visit and was not surprised that this was so. Ms W was aware that the paternal grandfather had spent time with X in Queensland and that the father attended on each such occasion. The mother had not told her that police were called to the home shared by the mother and Mr P. Arguments between them would be a concern. People tend to minimise DHS involvement.
Ms W said that the mother’s first move to Melbourne was for a holiday but that she ultimately decided to stay. She was a young girl trying to cope and it was normal for her to seek to go back to Queensland for her second child.
Ms W had said ideally it would be better for the mother to be in Queensland. She had not considered the father’s proposal for X to live with him was serious – the father moved on quite quickly, having enunciated this proposition, to the various problems he was referring to. Ms W understood that X had good relationships with both extended families in Queensland and she observed a very warm relationship between the father and X. She had misgivings about the visits in the schedule proposed and felt that the child’s system of naming should be allowed. She said it was not entirely clear-cut that the mother would remain in Victoria.
Some Findings about the Credit of the Witnesses
The mother was not a particularly good witness. Her answers were guarded and her demeanour not generally impressive.
The mother’s evidence was confronted by the very real difficulty that she had plainly suppressed, and in a witting way, evidence of a number of things that she clearly thought might be to her discredit. These included working in a brothel, her more recent drug use and the like.
Nonetheless, it should also be noted that some of what the applicant mother had to say struck me as having the ring of truth to it. It is clear that the mother had a very troubled early life and I accept that Queensland has very bad memories for her. I think that the mother’s desire to live in Victoria is, in the circumstances she describes, an understandable one. Care also has to be taken in evaluating the mother’s evidence to give proper credit to the enormous stress she was evidently under. As I have indicated I had to cease cross-examination on the topics of the mother’s former sexual abuse and how she met her partner because the mother was clearly incapable of sustaining it. It should also be remembered that she is still very young.
The father’s evidence was given in a rather pedantic style. His answers also were at times difficult to believe. It is clear that much of the time that X has spent with him in Queensland has in effect been spent at his father’s home with his father providing substantial assistance. The father’s assertions that he was, so to speak, the primary carer of X need to be seen in a context where as far as I would understand it, he has never looked after X on his own save possibly for some isolated occasions when he was still living with the mother. The father struck me likewise as being immature and very young. Much of his conduct seemed to me redolent of, and indicative of, an ongoing anger with the mother for her cessation of the relationship.
Mr Ricci Senior was an unremarkable witness in my view. His evidence appeared to me to be truthful but did not in my view take the matter decisively further one way or the other.
Ms W was a professional, giving evidence within her area of competence. Her answers to questions were assured and convincing and I should make it plain that I accept her evidence.
Findings on the Facts
The mother met the father when they were both very young. She had had a very troubled adolescence and even accepting everything she says about herself she had only relatively recently improved her health from a very low base. The father has health problems of his own and certainly was no more mature than one would expect of a man of about 21 or so at the time.
The parties conceived X who lived with them for a relatively short period of time before the mother decamped to Melbourne. This relationship was marred by at the least some arguments which X would have overheard. But both parties deny any significant domestic violence and I am prepared to accept that.
It is clear despite her denials that the mother has been the subject of a certain amount of DHS intervention and that a number of the matters revealed by such intervention are concerning. On her own case the mother used drugs extensively following her relocation to Melbourne for some months. On her own case she worked in a brothel for some time in late 2011 and early 2012. Her assertion that this was a bad time for her and the concomitant conclusion that her health was fragile to say the least was inescapable.
This impression is all the more clearly fortified by the exhibited material from (omitted) Health. It is difficult to know what to make about the (omitted) Health letter dated 17 January 2012. The mother says that it is simply not about her because she knows nobody called Ms R and that she had no cousin who died in a motor car accident.
Given that the letter sent by (omitted) Health to the DHS names the applicant correctly and gives her date of birth correctly, I think that it is more probable than otherwise that that letter was indeed about the applicant. The applicant was very unwell in January 2012 and whether the matters that the applicant denies are about her were put in there by mistake or whether the applicant mentioned them in some sort of period when she was unwell and not knowing what she was saying I cannot say.
It is equally clear that from the letter dated 13 January 2012 that the mother had acute mental health problems at this time and that upon visits by staff to the mother’s home, X’s care was clearly a matter of concern. That pattern is also confirmed by the DHS records otherwise exhibited before the Court.
Putting the matter in the round, it is clear that the mother has had a very troubled time with drug use, impulsive behaviour and that X’s care has been far less than optimal from time to time.
The reality is however that the mother has been in a relationship with Mr P for what, in the scheme of the mother’s life at this time, is a relatively lengthy period of time. She has a child with Mr P and there is no reason to suppose that X’s relationship with Y, her half-sibling, is anything other than good.
I note that I have not heard any evidence from Mr P whom I would have expected to have been called. Nonetheless, Ms Remmick has been essentially self-represented throughout this proceeding and the facts in my view do not go so far as to justify a Jones v Dunkel ((1959) 101 CLR 298) inference.
It should also be noted that whatever her deficiencies, the mother has been the primary carer of X throughout X’s life.
It is clear that the mother fled to Melbourne because she could no longer bear living in Queensland. She has begun to re-establish herself and her finances with the assistance of Mr P who appears to be in employment, albeit that its security is not entirely certain.
The mother has clearly prevaricated and obfuscated and generally made it difficult for the father to have time with the child whether in Melbourne or in Queensland. It is clear that her commitment to fostering what is equally clearly a very warm relationship between the father and X is at best uncertain. I do not accept the criticisms advanced by the mother to the effect that the father is either a front for his own family, or that he does not really want to see X. He has prosecuted his case to finality and that speaks for itself.
The Statutory Pathway
Although there has been some subsequent minor statutory amendment, the guidance provided by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65] is in my view still an authority to guide the Court as to how to proceed. The Full Court said as follows:
“[65]In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of 36 Fam LR 422 at 440 the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties. 36 Fam LR 422 at 441
11. The child’s best interests remain the overriding consideration.”
The first step clearly is to consider shared parental responsibility.
Neither party has sought an order for sole parental responsibility. The father expressly conceded that joint parental responsibility was appropriate even if X was to live in his primary care.
The mother’s position as set out in her Case Outline is to the same effect.
The Court is required to apply the presumption as to equal shared parental responsibility unless there are reasonable grounds to believe that a parent or person who lives with a parent is engaged in abuse of the child or family violence (s.61DA(1) and s.61DA(2) of the Family Law Act 1975 (“the Family Law Act”)).
The presumption may be rebutted where the Court is satisfied that the application of the presumption would conflict with the best interests of the child. (Section 61DA(4)).
Here, while there are hints of family violence both in the household in which X presently lives with Mr P and Y and formerly in the father’s household, the evidence does not go far enough to justify a rebuttal of the presumption. I am unable to find that there has been family violence as defined in the Family Law Act so as to activate the rebuttal in s.61DA(4).
In circumstances where both parents seek joint parental responsibility and where the rebuttal does not apply, it seems clear to me that I should make an order for joint parental responsibility.
The first thing the Court must do if the presumption is applied is to consider making an order for equal time in the event that it is in the child’s best interests to do so and it is reasonably practicable.
In circumstances where neither parent seeks an order for equal time and the family report does not propose equal time whatever the outcome may be, it is immediately apparent that it is inappropriate to make such an order. One of the critical things to make an order for equal time work is effective communication and cooperation between the parties and those qualities are wholly absent here.
Furthermore, there is no evidence to suggest that a child of X’s young age would cope with an equal time regime in any event. In the event that the mother stays in Victoria, equal time will be utterly impracticable in any event.
The Court is then required to consider substantial and significant time as defined in s.65DAA. Neither party is really seeking orders for substantial and significant time in any meaningful sense, but the question of time to be spent whether considered under the heading “Substantial and Significant Time” or whether considered more generally requires attention at this stage to be given to the central dispute between the parties, namely whether the mother should be ordered to return to live in Queensland as the father desires.
I do not propose to deal with this issue so to speak in its entirety at this stage but to make some introductory observations. The issue will require to be considered under the various matters that arise under s.60CC of the Family Law Act. What I would like to make clear is my definite view about the sincerity and or inherent reasonableness of the mother’s position.
As I think I have indicated earlier in these reasons for judgment, the mother’s desire to live in Victoria and to not live in Queensland is sincere. She says and has every good ground for saying that Queensland has very bad memories for her. I accept also that she perceives herself to be a better person if she lives in Victoria and I think she has good grounds for that belief. Her desire to live in Victoria is not capricious, albeit that at the very commencement of her living in Victoria it was a decision taken on the spur of the moment. Although I suspect that the mother’s desire to be some considerable distance away from the father plays a part in her desire to be in Victoria, I think that this is more probably largely subconscious.
Putting the matter shortly, the mother has good grounds for wanting to live in Victoria and her desire to stay here with Mr P and her other child is not of itself in any way inappropriate.
It should be noted however that these findings do not in any way determine conclusively whether the applicant’s position is in X’s best interests. That requires a consideration of the matters in s.60CC of the Family Law Act.
Section 60CC the Primary Considerations
There is no doubt that X has a good relationship with her father. Ms W’s report is clear on this point and there is no substantive challenge to it. Indeed the mother herself says that the father has a very good relationship with X. In those circumstances the primary consideration - the benefit to X of having a meaningful relationship with both of her parents, - requires no further articulation. It is self-evident.
There is no evidence, as I have already said, sufficient to suggest that there is family violence in any significant degree in this relationship and there is therefore no need to protect X from it (s.60CC(2)(b).
The Additional Considerations - Section 60CC(3)(a)
X is only 4 years old and has not expressed any views (subsection 60CC(3)(a)).
Section 60CC(3)(b)
X has lived with her mother all her life. Despite the reservations expressed by Ms W about the nature of the interaction between her mother and X during her interview with them, there is no reason to doubt that X’s primary attachment is to her mother. She would appear to have a satisfactory although not particularly developed relationship with Mr P so far as one can say from the evidence of Ms W. There is no reason to doubt that she has a relationship with Y although there is little direct evidence on this.
The child also has a warm and loving relationship with her father. This is all the more creditable to the father given the relatively restricted amount of time he has spent with her.
Once again, although there is little direct evidence, it seems X has a good relationship with her extended family in Queensland and with Mr P’s mother (see Ms W’s report at paragraph 24).
Subsection 60CC(3)(c)
The mother as the primary carer has clearly participated in making decisions about major long-term issues in relation to X and has spent time and communicated with her. Although the case has involved a measure of criticism of the father’s taking up (so to speak) of opportunities to be with the child, I have made it clear I trust that I do not accept those criticisms. There is going to be an order for joint parental responsibility, by consent and it is clear that the father both has taken such opportunities as have been reasonably available to him and continues to wish to do so to spend time with X.
Subsection 60CC(3)(ca)
Here I accept the criticisms advanced by Ms W at paragraph 67 of her report. It is not necessary to repeat the matters set out but it is clear that the mother is a suboptimal parent in terms of caring for X. Ms W said:
“… Ms Remmick appears to be struggling to be an effective parent and may have done so for a number of years.”
The father’s opportunity to fulfil his obligations as a parent have been necessarily restricted by the mother’s relocation to Victoria and the keeping of the child from him.
Section 60CC(3)(d)
This subsection is of critical significance in this case. Whatever her failings, and I accept that she has them, the mother has been the primary carer throughout. Notwithstanding the significant criticisms made by Ms W in her report, it was her primary position that the child should live with the mother. She was not asked in terms whether she changed that view when the various matters which she had not been told about had been put to her. It is reasonable to suppose and more probable than otherwise that X’s primary relationship is with her mother and that she would be deeply distressed if she were to be removed from her.
It is equally clear that X would be distressed to be removed from living with her half-sister, Y. The father conceded as much to Ms W and I accept that that concession does him credit.
While the relationship between Mr P and X is less clear, I see no reason to doubt that X would be distressed to an extent were she to cease to have him in her life. She already calls him daddy.
Subsection 60CC(3)(e)
The practical difficulty and expense of X spending time with and communicating with her father, if she lives in Victoria with her mother, are obvious. The same is true if X were to live with her father in Queensland and her mother lives in Victoria, (as I accept she will). Neither of these parties has much money and there will be significant practical difficulties if they do not live in the same State.
If I order the mother to live in Queensland obviously the practical difficulties and expense of the child spending time with either parent (whichever is the primary carer) would be very significantly reduced although the communication and relationships between X’s mother and father are so poor that there would be a measure of difficulty in any event.
Section 60CC(3)(f)
I have already commented upon the mother’s difficulties as a parent. It is clear that she has them and they are not by any means devoid of significance. Nonetheless, X is a happy, cheerful, healthy child and she has been in the mother’s primary care throughout her life. The father’s capacity to care for the child on his own is completely untested and I note the significant assistance given to him by his own father on such occasions as X has been, so to speak, in his care. Nonetheless, it is one thing to say that someone has had little experience in child-rearing. It is another to say that they would be unable to learn. The father impressed me as an intelligent young man, and his muscular problems would not present any difficulties in child-rearing at least at this stage. I conclude he would be able to look after X at least reasonably well in terms of day to day care should X live with him. Whether he would be able to provide for X’s emotional needs is more open to question.
For obvious reasons connected with his physical disability, which of course merit nothing other than sympathy and compassion, the father has developed a slightly restricted life, somewhat over concentrated it would seem on computer use. Whether he would be able to set this aside and devote himself wholly to this young girl’s care were she to live with him, must be open to some measure of question.
Section 61CC(3)(g)
Both of these parents are immature and young. The mother’s lifestyle and background has been at times chaotic and extremely troubled and continues to an extent to be so. The father’s lifestyle I have just dealt with above and while not once again being a matter that should be over-emphasised, the reality is that both of these parents entered upon parenthood when they were ill-equipped to do so in terms of maturity and establishing themselves in the world. Nonetheless, they are of course the only parents the child has.
Subsection 60CC(3)(h)
Irrelevant.
Subsection 60CC(3)(i)
These are important matters but in my view are sufficiently covered by the observations made above. Both of these parents have their weaknesses.
Subsection 60CC(3)(j) and (k)
The family violence issues have already been sufficiently dealt with above.
Subsection 60CC(3)(l)
I have a fear that the parties’ poor inter-relationship is such that no orders I make are necessarily more likely than any other orders to give rise to a lack of litigation. If I order the mother to relocate to Queensland, it is highly possible that she may make further application to rescind that order on the basis of some alleged material change in circumstances. If I permit her to live in Victoria, there may well be difficulties giving rise to further litigation in any event.
Section 60CC(3)(m)
There are no other matters that arise for consideration. It is a matter of calibrating the matters to which I have referred.
Conclusion
For all her failings the mother has been the primary carer of X all her life. Despite the mother’s failure properly to engage with social services, her endeavours to suppress significant aspects of her own history from those services, and from Ms W and from this Court, the fact is that X is thriving well. X loves her half-sister and appears to get along at least reasonably well with Mr P.
The mother’s desire to stay in Victoria with Mr P is sincere, understandable and rational.
I retain considerable doubts as to the extent to which the mother will in truth foment the relationship with the father on X’s part. That is part and parcel of her weaknesses.
Conversely however the father was unable to conceal a measure of open disdain for the mother when giving his evidence. I think that he likewise is not a particularly good bet to encourage the mother’s relationship with the child in the event that X lives predominantly with him.
In my view X’s best interests, calibrating all these relevant matters together, will be met by her living primarily with her mother in the place where her mother wants to live. Any endeavour to force the mother to live elsewhere will mean the end of her relationship with Mr P (he has tried living in Queensland and failed) and would clearly cause the mother significant distress.
The mother is a fragile personality and extra stress is likely not only to be extremely damaging to her but of necessity to X whether X lives predominantly with her or even with her father.
In the end it is clear to me that X should have the benefit of her relationship with her half-sister and should live with her mother accordingly. The mother should live in Melbourne and the child should spend as much time as is in any way practicable with the father.
I have considered the orders proposed by the parties and also considered the suggestions of Ms W. I accept Ms W’s recommendations and I have prepared draft orders reflecting them. I will give the parties an opportunity to study both these reasons for judgment and those draft orders and I will hear further from them before making final orders.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 5 February 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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