Richard and Briar (No 4)
[2008] FamCA 981
•7 November 2008
FAMILY COURT OF AUSTRALIA
| RICHARD & BRIAR (NO. 4) | [2008] FamCA 981 |
| FAMILY LAW – CHILDREN – With whom a child lives – Relocation FAMILY LAW – PROPERTY – Gift |
| Family Law Act 1975 (Cth) |
| A & A (relocation Approach) (2000) FLC 93-035 Bolitho & Cohen (2005) FLC 93-224 U & U (2002) FLC93-112 M & S (2007) FLC 93-313 Goode v Goode (2006) FLC 93-286 Taylor & Barker (2007) FLC 93-345 W & W [2000] FamCA 1302 |
| APPLICANT: | Mr Richard |
| RESPONDENT: | Ms Briar |
| INTERVENOR: | Maternal grandmother |
| INDEPENDENT CHILDREN’S LAWYER: | Danielle Webb |
| FILE NUMBER: | MLF | 2377 | of | 2006 |
| DATE DELIVERED: | 7 November 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Dessau J |
| HEARING DATE: | 14 - 17 October 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Melilli |
| SOLICITOR FOR THE APPLICANT: | Forte Family Lawyers |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INTERVENOR: |
| SOLICITOR FOR THE INTERVENOR: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Swart |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Danielle Webb Solicitor |
Orders
The Parenting Orders
That all previous parenting orders shall be discharged.
That subject to paragraph 3 of these orders, the husband and wife shall have equal shared parental responsibility for the child … born … January 2002.
That the husband shall be entitled to keep the child enrolled in full-time formal schooling.
That each parent shall be entitled to attend all school functions and receive all school documents ordinarily available to parents, and to that end, the husband shall do what is necessary to ensure that the child’s school forwards duplicate copies of reports, information and documents to the wife.
That the child shall live with the husband.
That subject to paragraph 7 of these orders, the child shall spend time with the wife as follows:
(a)If the wife is residing in Victoria:
(i) During school terms each alternate week-end from after school Friday until 5.00pm Sunday, save that if the wife is living within 1 hour’s drive of E, then until the commencement of school on Monday, starting the first week-end of each school term, and to commence on Friday 14 November 2008;
(ii) During school terms, from the conclusion of school to 6.30pm each Wednesday, provided that time is spent in the E area, and the wife shall return the child to the husband outside the E police station;
(iii) For one half of each school holiday period being the first half in the 2008/2009 summer holidays and 2009 school year, the second half in the 2009/2010 summer holidays and 2010 school year, and alternating thereafter;
(iv) From 4.00pm 24 December 2008 to 4.00pm 25 December 2008 and each alternate year thereafter and from 4.00pm 25 December 2009 to 4.00pm 26 December 2009 and each alternate year thereafter, and spend time with the husband from 4.00pm 25 December 2008 to 4.00pm 26 December 2008 and each alternate year thereafter and from 4.00pm 24 December 2009 to 4.00pm 25 December 2009 and each alternate year thereafter and all Christmas time change-overs shall take place at …;
(v) On the week-end of Mother's Day from 5.00pm Saturday until 5.00pm Sunday on the proviso that if Father's Day falls on a “time with” week-end, then the wife’s time is suspended from 5.00pm Saturday; and
(vi) On each of the wife’s and the child’s birthdays for a period of three hours as agreed between the parties and in default of agreement, from 3.30pm to 6.30pm in the E area; and
(vii) By telephone or webcam each Wednesday between 6.30pm and 7.30pm and at other reasonable times.
(b)If the wife is not residing in Victoria:
(i) From the first Saturday until the last Saturday of the July or mid-year term holiday;
(ii) For four weeks of the summer holidays being the first half in the 2008/2009 holidays, the second half in the 2009/2010 holidays, and alternating thereafter;
(iii) When the child is otherwise with the maternal family;
(iv) By telephone or webcam each Wednesday;
(v) By telephone on Christmas Day, Mother's Day, and each of the wife’s and the child’s birthdays between 6.30pm and 7.30pm and at other reasonable times; and
(vi) By letters and cards.
That for the purposes of the wife’s time with the child pursuant to paragraph 6 of these orders, the time shall take place:
(a)In the substantial attendance of either of the maternal grandmother, the maternal uncles or their wives, but not Miss R Briar without one of them; and
(b)In Victoria until the end of the 2010 July or mid-year term holiday.
That while the child is with the wife, the husband is permitted to contact him by telephone or webcam each Wednesday, Christmas Day and Father's Day and the child’s birthday between 6.30pm and 7.30pm and at other reasonable times.
That for the purpose of travel if the wife resides outside Victoria, once the child is spending unsupervised time with her, the wife shall pay for and arrange travel at the start of her time with him and the husband shall pay for and arrange travel at the conclusion, and such travel shall include an accompanying adult until the child reaches the age of ten.
That any change-overs which do not take place at the child’s school or outside the E police station shall take place at the service station at … and handovers shall be effected by either of the maternal grandmother, the maternal uncles or their wives and in the absence of the wife and/or Miss R Briar.
That each parent shall keep the other parent advised of their current residential address and telephone contact numbers to be used only in case of emergency.
That the wife shall sign and return to the husband a passport application for the child within 14 days of these orders and in the event that she fails to do so, the husband may obtain a passport for the child without the wife’s consent.
That once a passport has issued for the child, it shall be held by the husband and he shall be at liberty to take the child overseas for one trip of no more than 28 days’ duration in the 12 month period from the date the child’s passport is issued, provided that otherwise the child’s name shall be placed and maintained on the Airport Watch List at all points of departure from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.
That the husband’s solicitor shall forthwith arrange for service of a sealed copy of this order on the AFP and the Marshal of the Family Court of Australia.
That at least 28 days before the husband takes the child overseas he must give to the wife in writing:
(a)Notice of his intention to take the child overseas;
(b)Details of his destination while away from Australia;
(c)An itinerary including the departure and return details; and
(d)A contact telephone number
That each party by themselves, their servants and/or agents shall be and are hereby restrained from:
(a)Denigrating the other in the presence or hearing of the child;
(b)Discussing the proceedings in the presence or hearing of the child; and
(c)Discussing with the child the circumstances leading up to his leaving Victoria with the wife in January 2008.
That in the event that the wife fails to return the child to the husband at the conclusion of any visits pursuant to these orders, then all such “time with” orders shall be immediately suspended and the wife shall not have time with the child without an express written agreement between the parties, or further order of this Court.
That pursuant to s 65DA and s 62B, 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 these particulars are included in these orders.
That the appointment of the ICL shall be and is hereby discharged.
The Property Orders
That subject to paragraph 27 of these orders, within 14 days the parties shall do all acts and things to ensure that the proceeds of the sale of the former matrimonial home held on their behalves shall be distributed as to:
(a)$28,615 to the wife;
(b)$51,770.63 to the husband; and
(c)any additional interest 70% to the husband and 30% to the wife.
That the husband shall retain:
(a)Any funds he holds as Trustee for the child;
(b)His 1993 Laser motor vehicle;
(c)His Mastercard debt;
(d)The debt to his parents for payment of the mortgage over the former matrimonial home; and
(e)The entirely of his interest in his Super Fund 1, Super Fund 2 and Super Fund 3 superannuation funds.
The wife shall retain her Camry motor vehicle and superannuation, if any.
That within 14 days from the date of these orders, the wife shall make available to the husband any photographs, video tapes and other pictorial records of the child, and the husband shall be at liberty to make copies of all those items, at his expense, and he shall return the originals to the wife within 14 days thereafter.
That unless otherwise specified and save for the purpose of enforcing the payment of any money due under the proposed settlement:
(a)Each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at this date;
(b)Monies standing to the credit of the parties in any joint bank account is to be divided equally between the parties;
(c)All insurance policies shall become the sole property of the owner named thereon; and
(d)Each party is to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That otherwise all existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation in the Court.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
That the wife shall pay the husband’s costs fixed at $14,000, and such sum shall be deducted from the share she shall receive under paragraph 20 of these orders.
That a transcript of the costs reasons given by me this day shall be prepared and retained on the court file.
IT IS NOTED
That paragraph 13 of these orders is unconditional and it is not intended that paragraph 15 of these orders be a pre-condition of the child’s travel overseas.
IT IS NOTED that publication of this judgment under the pseudonym Richard & Briar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2377 of 2006
| MR RICHARD |
Applicant
And
| MS BRIAR |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties’ child is 6½ years’ old. From his parents’ separation in May 2006, when he was four, until early this year, he lived with his mother and his 17-year-old half-sister R Briar, spending significant and substantial time with his father. That changed in January 2008, when the mother removed him from E in Victoria and took him secretly to far northern Queensland, leaving R behind. Despite the father’s prompt action in seeking a recovery order, and despite a chain of court orders directed towards finding the mother and child, the child was only located by Federal Police at the end of April 2008.
Since then, the child has lived with his father back in E, and has seen his mother only in a supervised setting at a contact centre.
The father wants orders that the child continue to live with him in the E area and spend supervised time with his mother, to become unsupervised alternate week-ends, half school holidays and special occasions after awhile, or during school holidays if she moves away.
At the start of the case, the father entered consent orders with the maternal grandmother, for her to have the child spend time in her household for one week-end each month and on other occasions, if the child continues to live with him.
The father’s position is supported by the Independent Children's Lawyer.
The mother wants to relocate the child to a farm two hours’ west of Cairns in far northern Queensland. She proposes that he will spend two ten-week blocks each year with his father in E. She wants him home-schooled for the periods he is in FNQ.
If she is not permitted to take the child to FNQ, the mother will go nevertheless. In that case, she proposes as much time as possible with the child, twice per year there, otherwise in Victoria.
There was another small issue about a trip overseas that the father is proposing, for the child to visit the paternal grandmother, who is unwell. The mother opposed the trip, but acquiesced in closing submissions.
The father and the mother also have a dispute about a property settlement. The pool is small and the issues are narrow. I shall return to the property issue after dealing with the more complex issues as to the child’s care.
BACKGROUND
The husband is Mr Richard. He is aged 43. He is employed as a counsellor with the Community Health Centre, although he is on leave at present, and working part-time at the child’s school.
The wife is Mrs Briar. She is aged 41 and is a teacher. At present she lives with friends. She has a daughter, R Briar, born in 1991, who is currently a boarder in Year 11.
The parents started to live together in May 2001. They married in 2004, and separated on 12 May 2006. The child was born in January 2002.
The prevailing orders when the child disappeared early this year were the orders of 6 December 2006. They provided for the child to live with his father each alternate week-end from Friday to Monday, overnight on each alternate Monday and Wednesday, half holidays, and on special occasions. Otherwise, he was to live with his mother.
MATERIAL RELIED UPON
The father relied upon:
·His Amended Application for Final Orders filed 29 September 2008
·His affidavit filed 29 September 2008
·The affidavit of MM filed 29 September 2008
·The affidavit of D Richard filed 29 September 2008
·His financial statement filed 20 September 2008.
The mother relied upon:
·Her amended response filed 11 September 2008
·Her affidavits filed 11 September 2008 and tendered on 14 October 2008
·Her financial statement filed 11 September 2008
·The affidavit of Mr A filed 16 September 2008
·The affidavit of Mr S filed 11 September 2008
·The affidavit of R Briar filed 12 September 2008.
The ICL relied upon:
·Two family reports from Ms D filed 27 November 2006 and 19 June 2008
·Two psychiatric reports by Dr K dated 4 November 2006 (not required for cross-examination)
·Report from the Children’s Contact Centre dated 3 October 2008.
Neither Mr Melilli for the husband nor Ms Swart for the ICL objected to the filing of R’s affidavit, although she is aged 17. In the circumstances though, they decided not to cross-examine her. I was concerned about R’s involvement, and the possibility of pressure on her, direct or indirect, to swear the affidavit. I will deal with that aspect below. In view of what was at least her expressed desire to be heard, given her age, and most particularly given that there was no objection, I allowed the affidavit.
The mother represented herself. I made sure that she had a copy of s 60CC of the Family Law Act 1975 before the case started. Counsel for the other parties made quite proper concessions so that, for example, she was able to address me last, so that she would understand what needed to be addressed. She is educated, intelligent and articulate, so was able to make her position quite clear.
THE CHILD ISSUES
RELEVANT LEGAL PRINCIPLES
Before the Family Law Amendment (Shared Parental Responsibility) Act 2006, the Full Court set out the applicable principles and the approach for a trial Judge in relocation cases, in A and A (Relocation Approach) (2000) FLC 93-035 (considering the binding authority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852). It provided the following three steps for the Judge (at para 82):
1.Identify the relevant competing proposals;
2.For each relevant s. 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.
Expanding on the second step, the Full Court in A and A added:
·As one, but only one, of the matters considered under s. 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
The Full Court emphasised that a party did not bear any onus to establish that the relocation would promote the child’s best interests, and could not be required to demonstrate “compelling reasons” for the relocation. Although significant weight must be attached to the parent’s right to freedom of movement, it was subject to the child’s best interests, which remained the paramount though not the sole consideration. In deciding best interests, the court had to consider each parent’s proposal for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's right to regular contact with a parent no longer living permanently in close physical proximity.
In Bolitho and Cohen (2005) FLC 93-224, the Full Court noted that the High Court in U and U (2002) FLC 93-112 had reaffirmed that the “overarching issue” in relocation was to ensure that any parenting order was in the best interests of the particular child. It noted too that U and U “… ameliorated the somewhat rigid and/or formulaic approach set out in A and A.” The Full Court (at para 72) referred to the High Court having said:
…that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
In December 2006 I published my reasons for judgment in M and S (2007) FLC 93-313 which involved a proposal for the mother to relocate from Melbourne to the United Kingdom with the parties’ eight-year-old daughter in order to live with her husband who had taken up employment for a period of three years.
In M and S, I referred to the new legislation and noted (at para 81,386):
The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and parent will inevitably be affected by a move away, that in itself should preclude the court from permitting relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
I did note however, (at para 81,385) that:
Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case observed (at para 72):
‘… it can fairly be said there is a 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…’
In M and S I then applied the pathway outlined by the Full Court in Goode v Goode (2006) FLC 93-286. This approach was approved in Taylor and Barker (2007) FLC 93-345. The majority (Bryant CJ and Finn J) went on to observe (at 81,916-917):
However, consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time’ or “substantial and significant time” arrangement.
The pathway in Goode’s case is simply a logical stepping through of the legislative provisions. In that respect I first note that s 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.
The court is then required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)), and then consider an order for equal time (s 65DAA (1)(c)).
If the court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ), and then consider an order for substantial and significant time (s 65DAA (2)(e)). “Substantial and significant time” is defined in s 65DAA(3), and s 65DAA(4).
In considering “reasonable practicability,” the court must have regard to the following factors in s65DAA(5) of the Act:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
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.
THE ISSUES
It is appropriate to consider the issues in this case under the relevant s 60CC considerations. I will first consider the primary considerations under s 60CC (2) of the Act.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
It is clear from all the evidence, including Ms D’s Family Reports, that the child does have a meaningful relationship with both his parents. Both parents say that is important, although their perceptions and proposals as to how it can be maintained are vastly different. I need to analyse those perceptions and proposals. I also need to analyse aspects of each parent’s conduct, as to whether their actions belie what they say.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Each parent raises issues under this heading.
The father has consistently claimed that the mother was emotionally unstable and volatile, as well as violent during the relationship, and often in front of the child. He also referred to a very recent incident, on 4 May 2008, when the mother was to spend the first time with the child after he had been returned by police to his father.
On the father’s account, the mother jumped from her brother’s car and yelled at him:
You fucking bastard, you bastard, you’re going to die, you’re going to die. You destroyed the lives of innocent people. I’m going to kill you, you’re the devil. You’re going to lose [the child] forever.
He said that she ran up to the gate and kicked it open, breaking the latch and splintering the top of the post where the latch had been attached. He said she was yelling, that she hit him on the head two to three times, snatched the spectacles off his face, scratched him in the process, and continued to hit him and tried to pull his hair.
Someone in the home called the police. Ultimately the police made an application for an intervention order in the husband’s favour, and on 30 May 2008 an order was made against the wife, by consent, but without admissions. The mother now faces criminal charges.
The father swore that the child observed the assault and that he was “crying, shaking and …visibly distressed.”
The mother’s account of the incident (at paragraph 36 of her affidavit sworn on 13 October 2008) was that whilst waiting in the car for her brother to collect the child from the father, she became anxious that the father would block the visit. She went to the door to find out what was taking so long, when he stepped out in front of her. She swore:
…I was frightened, distressed and became angry, yelling at him. I reached up and took off his glasses. I did not hit him. I do not recall scratching him. It is possible that [the father] scratched his own face for evidence, as he has done this in the past.
She said that the father then said the visit was off and proceeded to man-handle the child out of his sister R’s arms. The police were called, and on the mother’s account:
…[The father] instantly turned it to his advantage by cancelling the visit, then taking out an intervention order and charging me with assault…
She said that exhibited the father’s propensity to “inflame and escalate”. Still she seemed to concede that she had lost her temper in that she swore:
I regret losing my temper. Within the context of the previous few years I understand my behaviour, yet have made a commitment to myself to learn absolute self-control regardless of the extremity of the situation.
I acknowledge that the incident occurred at a highly emotional time, soon after the mother had been caught by police in FNQ and the child had been removed from her care and returned to his father. That explains the volatility surrounding this change-over. It does not excuse it. It concerns me from a number of different perspectives.
First, the father had consented to the mother spending this time with the child. The order of 2 May 2008 provided that it be supervised by the mother’s brother, Mr Briar. It also clearly provided that the brother conduct the change-over. That is exactly what was calmly in train when the mother impulsively involved herself. For her to claim that the police only found her extremely distressed because the father would not hand the child to her, did not ring true. She was obviously already extremely distressed when she needlessly interfered with the change-over, contrary to the court order. It was unreasonable to blame the father.
Secondly, I am concerned that the mother misled me by claiming that there were no witnesses to the incident, and that the criminal prosecution would not proceed. She has been charged. In cross-examination, she had to agree that the case appears to be proceeding, and that she lied in suggesting otherwise.
Thirdly, and most importantly, I am concerned about the impact on the child. The mother said it did not occur in his presence. I prefer the evidence of the father that, to the contrary, it occurred in front of the child. He could not have missed it. And, the child told Ms D, after the incident, when he was about to see his mother in Ms D’s rooms, that it would be:
…a good idea to shut the door…if my mum sees my dad, she’ll just start yelling at my dad.
The timing of the 4 May 2008 incident was awful for the child, after the trauma of being concealed from his father, and then recently separated from his mother, it being his first contact with her after that.
The circumstances surrounding the child’s removal in January 2008 is in itself an aspect that I might consider has exposed him to psychological abuse by his mother, but I shall return to that in detail below.
The mother has consistently claimed that she was physically and psychologically abused by the father in the course of the relationship, and throughout the separation. She offers little tangible proof. I acknowledge that the claim is often not one that gives easily of tangible proof, but I must assess the weight that I can attach to her account.
She referred to one particular incident of violence, when the father grabbed (and she said bruised) her wrists, in 2005. He said he was trying to stop her from hitting him. I cannot be sure as to what occurred, but I do note various implicit admissions by her that she was violent to the husband, and that they were verbally abusive to each other.
I am left in no doubt that the mother has experienced some aspects of this relationship as abusive. How much of that is due to her own fragility, or the father’s actions, or a combination, is something that I cannot unravel. I can say she made some extravagant claims. For example, as part of the “oppression” that she claimed led her to “flee” in January 2008, she spoke of the “abusive” situation at change-overs. When pressed, she had to concede that throughout the entirety of 2007, nearly all the change-overs occurred by the father collecting the child from school and returning him to school. The parents were rarely in contact.
I also assess her account in terms of how her evidence “chopped and changed”. Over and over again she professed that it was essential for the child to spend very significant times with his father, and she thought that if the parents lived with distance between them, they could get on well. At one point, whilst crying, she said she had always loved the father and that she still loved him. At another point, in refusing permission for the father to take the child to visit his paternal grandmother in the UK, she spoke of having “so much fear of what he ([the father]) is capable of”. She said he would “bluster and bully and get his own way through violence”, or words to that effect. The evidence did not support that. The fact that she proposes the child spend such extensive times with him is also inconsistent with her claims. I cannot make a finding against the father as consistently violent or abusive towards the mother.
The father and the mother are, however, like chalk and cheese. He is as tight and controlled as she is emotional and histrionic. Dr K, who performed a psychiatric assessment of both parents in November 2006, observed there were differences in how each of them handled their relationships, interactions and emotions. He wrote:
He is clearly a much more obsessional and controlled person than is she and it would seem likely that that has been a very frustrating part of the relationship as far as she is concerned.
On the other hand she is a much more animated, flamboyant and emotionally expressive person than is he and he has found that distressing.
Dr K noted that each parent then had polarised the other in those directions but both had a lot to offer the child. I can say that it is easy to see why there has been enormous conflict in their relationship. It is also easy to comprehend that, to use a colloquial expression, they each know how to press the other’s buttons.
I must now consider the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Save that it is obvious that the child loves both his parents, given his age, his views as such have not featured as a stand alone consideration in this case.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is interesting that although each parent professes a full understanding of the child’s needs for a meaningful relationship with the other, and each pledges their commitment to that, their affidavits are full of intense criticism of each other as people and parents.
I am satisfied that they both genuinely love their little boy. It was apparent to the Family Report writer that the child is loved, and is secure in that love. Having observed each of the parents, and having heard lengthy cross-examination of them, I am also satisfied that each is naturally protective towards him (although I will shortly deal with some limitations when it comes to insight in that regard). Given that protective stance, I must conclude that despite what they have sworn, each innately believes that the child’s day-to-day needs can safely and properly be met with the other parent, given they both say he would benefit from significant time with the other.
Until the mother absconded, the father was seeking that the child’s time be shared between them. Implicit in that proposal was an acceptance that his mother could meet his needs. In evidence he spoke of a need now to re-build his trust towards the mother, but with a view to equal care at some time in the future. Again, it is implicit that he accepts she can meet the child’s needs. By the end of the evidence, the father sought supervision until the end of 2010. For reasons that I shall come to, I am satisfied his near-term concerns were validly based on the evidence, rather than fuelled by a desire to cut the mother out of the child’s life. Those concerns were shared by the ICL.
The mother’s proposal is that the child will spend 20 weeks of the year with his father. I can conclude that she trusts that the child’s needs will be met in that setting. Again though, I note her extremely mixed messages. The lability in her evidence made it hard to follow exactly what she was saying. I suspect that I was privy to some of the frustration that the father has felt in dealing with her.
On the one hand, the mother spoke with great emotion, sometimes through tears, of her desire for the child to be shared by the two parents, and to enjoy all that was good of each of them. On the other hand, her evidence was continually peppered by references to the risks to the child by the husband’s “addiction to pornography”, his incapacity to care for the child’s cleanliness, or her need to “heal” the child when in her care.
The confusion seemed to reflect not only the mother’s naturally emotional style, but also a current lack of stability, whereby she was rambling at times. It seemed she often found it difficult to focus and address questions in a consistent or concrete manner. At other times though, her apparent confusion seemed to reflect a lack of candour. Several times she indicated that as so many allegations and lies had been made up about her, she was simply responding in kind.
Although the parents have many shared aspirations for their son, wanting him to have a happy, healthy and loving family life, they see only the differences between them. And the differences are genuinely stark.
The father values the stable, familiar and secure lifestyle established for the child in E. He is part of the local community. There is a strong support network of friends and families around them. They are engaged in local sporting activities. He attends a local school which is oriented towards community and parental involvement. They live in the home occupied by them since 2005. The wife’s extended family is about two hours away, in regional Victoria. The father acknowledges that the child is close to them, and has agreed to orders that if the child is living with him, he will spend one week-end per month with them.
The mother sees the world through a different prism. For example, she believes in home-schooling. In her care, the child was absent during his prep year at school for 42 days. She said she deliberately kept him home for some of the time, to add a rich dimension to his education. In fairness to her, R appears to have flourished with some early home-schooling. She is doing well at her school and in Year 11 is undertaking two Year 12 subjects.
The mother’s aspirations are still more significantly different. She is attracted to a less conventional, more free lifestyle for the child. When she described the proposed lifestyle in Queensland, there was no question of the passion she felt. She saw it as the fruition of her dreams, aspirations, and life work. She is qualified as a natural therapist, and as a teacher. She has had a long-standing commitment to nature, and is involved in horse-riding, and the teaching of horse-riding. She spoke with genuine relish at the prospect of living in the tablelands two hours from Cairns, on a property where they would grow and eat organic vegetables, where there is a river and waterfalls, home-schooling, and the capacity for her to meet various vocational goals such as helping to establish an eco-village, or teaching horse-riding to disadvantaged children.
The mother is someone who marches to the beat of her own drum. There is absolutely nothing wrong with that. And the lifestyle that she seeks is a viable one. Whether or not it is conventional, or conforms to the mainstream, cannot be a matter of criticism. An opinion on her desired lifestyle is immaterial, save when it comes to the impact on the child, and in particular to the relationships that are important for his healthy development.
The fact that the child is likely to experience one lifestyle with his father, and another with his mother, does not in itself cause me concern. In that respect I agree with the mother, that he could, for that very reason, be all the richer. And so far, the child has shown himself as sufficiently resilient to handle two markedly different households. I am not troubled if he plays with a Playstation in one home but not in the other, plays ball-sports in one but not the other, eats organic food in one but not in the other, or if he is treated for minor ailments with traditional medicine in one home, but alternative therapies in the other.
What does concern me is the mother’s lack of insight when it comes to the child’s needs, and when it comes to dividing his needs from her own. Although she professes great insight – and I am sure that in some aspects of her life, including in parts of her parenting, she possesses that insight – in several significant respects she is not exhibiting insight when it comes to her care of the child. The most important example is her action in absconding with him for several months earlier this year. Another example is in her proposal to relocate, with her plan for him to spend two 10-week blocks each year with his father in Victoria. And another example is her proposal to move to FNQ, even without him.
No matter how she tried to justify it, or dress it up, the mother’s actions in abducting the child and keeping him in hiding were reprehensible. She said she saw no alternative, no other way out of the “oppression” she felt in E. She laid the blame squarely on the father. She itemised her various grievances in various documents, and at various times in the course of her evidence. They included that he was controlling and abusive in their relationship, he “persecuted” her with the threat of on-going litigation, he was dismissive of her good mothering, intransigent in negotiations, and he enlisted counsellors, and even Ms D, as a “peer” against her in the course of counselling sessions.
Given the parents’ different personality types, it would not surprise me if she genuinely perceived at least some of the husband’s behaviour in that way. And some of her grievances were supported by her housemate and friend Mr S, although his evidence was particularly partisan in the mother’s favour.
Overall, I am satisfied that the mother is hyper-sensitive and prone to exaggeration and over-reaction. The litigation, although inevitably stressful, was in no way vexatious. So far as Ms D was concerned, that she treated the father (a community counsellor) as her “peer”, was fanciful. Her first report in 2006 had agreed with the mother’s proposal that the child should continue to live with her. And as I have noted, the mother’s description of the adverse impact on her of continually coming into contact with the husband at changeovers in 2007, was simply not based on fact. It did not occur for most of the change-overs.
I am sympathetic however to one major grievance the mother expressed. That is, that the regime prior to her abduction of the child did result in a number of changes back and forth in each week. The mother clearly found that very hard. It seems to underpin her belief that extended times with each parent would be better. That she sees that in terms of 10-week blocks with his father, and up to 16-week blocks with her, is something I need to consider carefully. In any event, I am satisfied that she had many options to bring about a change in the prevailing regime, other than absconding with the child. It is a poor excuse. It either reflects a lack of emotional stability, a malevolent desire to please herself, or a combination.
Even if I accepted that the mother felt as oppressed as she claimed, and that she had lost faith in the legal system, as she also claimed, what she did was inexcusable. What concerns me most is her lack of remorse. That was Ms D’s observation, and it was strongly supported by the rest of the evidence.
It was clear that in the course of packing her home, the mother enlisted the child in the subterfuge, ensuring that he would not tell his father that they were leaving. It is clear that she involved R, by telling her they were leaving, but also ensuring that she did not disclose the secret. To that end, R was inveigled into the lie, which she continued when questioned by police, and before me on 29 February 2008, when she instructed a solicitor, Mr Mulvany (who appeared pro bono on her behalf), that she did not know that her mother and the child were leaving.
Once away, the mother changed the child’s first name to “…”. She changed his surname from Richard-Briar to “…”. She dyed his hair. She said that to him it was all “just a game”; he was excited at the prospect of living “in the forest”; he saw himself as a “forest boy”; and, he enjoyed the idyllic lifestyle they shared on a farm. She said he was happy and secure with her, and therefore coped without his father and sister. She showed little insight into the inappropriateness of the position in which the child was placed by her.
She also showed little insight into the impact on R. She spoke of R as an independent, mature girl. She spoke of the mutual respect they shared, and R’s understanding of the need for her mother to leave. She was surprised by the distress that R was caused, and blamed the questioning that R received from police. She said she could not have anticipated the intensity of such police questioning, because she “did not know about the legal system”. When pressed by me as to the length to which she would have gone, had the child been abducted from her, she conceded that she would have pursued every possible avenue to find him. It was naïve, or more likely dishonest, to express surprise at the avenues pursued by the father, and the police, including the police questioning of R. It was not forthright to simply suggest that she did not understand the legal system.
She showed only a limited appreciation of the hurt, upset and concern that she caused her own mother and family. It seems they had no idea of the plan she was hatching, or where she was hiding. She was leaving 16-year-old R to fend for herself. She had contemplated R living with a 20-year-old boy, a former student at R’s school. She saw nothing reckless or inappropriate in that. She said he was a respected member of the school community. R’s only extended family members lived several hours’ away. Her grandmother stepped in, and put her in boarding school and met the considerable fees. The mother basically left her family to pick up the pieces. She said she was close enough to her family that she had been able to “make it right” with them, even though it was apparent that her mother had strongly disapproved of her actions.
The mother admitted that it was only being caught by the police that brought her time with the child in FNQ to an end. Any concern expressed by her as to the entire escapade lacked genuine contrition or remorse for removing the child from his father and family, for the inevitable confusion to the child, for the pain to his father, and the pain to her daughter and extended family. Any expressed remorse appeared to be for her own position. It was certainly not expressed unconditionally. She continued to blame the father (not realistically overall), the family law system (I acknowledge litigation is stressful, but it cannot excuse her over-reaction), and later even the police, for upsetting R by questioning her.
She referred to this as “the second abduction”, attempting to equate it with the father initially having kept the child in his care when he left the former matrimonial home at separation, in 2006. Although that must have been felt keenly by her, there was no comparison. The father had the child with him for five days in total. He contacted the mother. His excuse, that he was concerned for her mental state because he had left her, has a credible ring, given her emotional state manifested throughout this hearing. I am not unsympathetic to the rigours for her, separated from her son, and running this case without a lawyer. But I gained an insight into how fragile, and even irrational, she can be. It is probable that the father was rightly concerned for the child at the difficult time of separation, but he promptly reunited him with his mother, and then properly pursued arrangements through the legal process.
Ms D observed that the mother’s current proposal seems far more focussed on her needs than the child’s. The mother blithely dismissed any suggestion that for a six-year-old child to experience blocks as long as ten weeks or more away from one parent would be emotionally unsustainable or difficult for him. She said that after a few days of sadness, he would settle and enjoy “living in the moment”, wherever he was. She thought he would be more settled without constant change-overs, and would gain the best of both lifestyles and the best of both parents. She did not entertain or acknowledge the difficulty for the child in adapting from a lifestyle where he would run free on the farm and be home-schooled, to a lifestyle where he would re-enter a conventional classroom and need to pick up the threads of the class work, activities, friendships, and local community, exacerbated by changing back and forth several times every year.
So far as that schooling is concerned, the mother said she would enlist the child’s E school to help her fit his home-schooling with the curriculum. However she had made no enquiries as to whether, if the child were away for 32 weeks of each year, they would work with her in that way.
Finally, it had been very difficult to draw the mother on what she would do if not permitted to take the child to Queensland. When pressed in cross-examination, she was extremely distressed, but what became clear was that she would still go to Queensland. I emphasise that she has freedom of movement. The court cannot stop her from living wherever she chooses. I can observe though that it is sad for this young child that her need for the lifestyle in that remote location exceeds her need to be living nearer to him.
I asked her to think about similar lifestyle opportunities but closer to E, somewhere in Victoria. She agreed there were organic farms, and places she could live and work, but she was dismissive about them as an option. Amongst other things, she did not like the climate.
The mother said that if she lived in Victoria it would most likely be near her family in the northern Victoria area. In that case she would still propose two 10-week blocks with the father. But it was hypothetical. She intended to go to FNQ.
The mother asserted that Ms D’s report was biased against her. I do not believe that is the case. Ms D spoke favourably of the mother’s parenting in many respects. Having heard all the evidence though, I take a different view from Ms D on two particular topics.
The first is the Report writer’s opinion that the child’s ego may not be strong enough to cope with his mother, without supervision.
I am conscious that Ms D made that observation in the context of the mother’s recent reprehensible abduction. It is not surprising that she was alive to what concerned her as the mother’s emotional manipulation of the child. She did acknowledge that she was seeing the mother with the child at a sensitive time, a month after they had been found by police, and the first time they had really been back together. She took no issue with the mother’s “unusual behaviour” in lying on the couch with the child, singing “Amazing Grace”, during the session. She agreed the child showed some flu symptoms. She understood the mother’s perspective that she was soothing her son. But Ms D believed the mother was clinging more than was comfortable for the child.
I accept Ms D’s observation, but given the child’s overall happy nature, good development, and innate capacity to cope, I am satisfied that he has coped and can cope, with his mother’s intensity. That is not the significant risk that I perceive for this child. I do agree with Ms D though that he faces the risk of an emotionally untenable situation on the mother’s proposal, and a risk of not being returned to his father. I will turn to that in a moment.
Secondly, Ms D observed that when the mother, the child and R were in her rooms, R seemed to have “no place in the mother’s affections”. I accept that observation as the scenario played out before her, the mother not having seen the child for some time. I have had the benefit though of all the evidence. I am satisfied of a strong relationship between the mother and R.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
From one point of view, the conduct of each parent in facilitating the child’s relationship with the other parent has been positive, despite what they allege about each other. At 6½, despite all sorts of changes, acrimony and trauma, the child adores both his parents. However, that may be as much to do with his own personal resilience, as to the credit of his parents.
The mother claims that the father has systematically tried to undermine her, particularly by enlisting “the [E] community” and rallying them against her. There is no independent proof of that. Her hypersensitivity and her confessed over-reaction to the rigours of litigation make me question her evidence on this score as well. So does the fact that throughout her own evidence she spoke of her supporters in the community, and that seemed to be at odds with her claim that the father had turned “everyone” against her.
The father claims that the mother has undermined his relationship with the child, by involving him in the conflict. He also claims that he does not trust that she will facilitate a relationship if she moves thousands of kilometres away with the child, given her willingness to abduct and secrete him earlier this year.
I am sympathetic to the father’s concerns. I have already noted the mother’s lack of remorse in relation to the abduction. I have noted that she had no plans to come forward. Had the police not found her, there was nothing in the evidence to suggest that the child would have seen his father.
The mother “swears black and blue” that she will ensure that the child spends the time as promised with his father. It is hard to have faith in that when I look at her conduct, her response to court orders, her philosophies as to the child’s own choices and voice, and even her own financial resources to contribute to airfares.
Her anticipated income on the share-farm in FNQ is currently in the form of various ideas or plans, but there is nothing tangible. She spoke of maybe $50,000 per year, but it seemed to be a figure plucked from the air, and significantly more than she has ever earned. Interestingly, provided the child is with her, she agrees to pay all the air-fares, but she says “it wouldn’t be fair” to pay more than half if she is not allowed to take him with her. In any event, she had not made enquiries about the cost of air-fares.
When questioned as to whether she would abduct the child again, one of several reasons she gave that she would not – albeit more or less as a throw-away line – was that she could not afford it. That gave little comfort.
The mother places particular emphasis on what the child wants. It is likely that he will find it disruptive to move back and forth as she proposes, and I have no faith that, if he complains to her, she will force him to go. What she describes as “respect” for his views would most likely be manifested as a laissez-faire attitude of simply following his wishes. Her evidence gave me no confidence. For example she said that if he did not want to go, he would have to “negotiate” with his father. She did not say that she would firmly ensure that he went.
I am particularly concerned by the mother’s emotional and ambivalent state. In her evidence she swung from the most profound criticisms of the father as her “oppressor”, to sobbing “I still love you”, at a time of distress in her evidence. With that lability, it is hard to have faith that a steady decision will be made when it comes time to send the child to his father, particularly if the child shows even mild hesitation.
Moreover, I have no faith that the mother regards herself bound by court orders. One of the central reasons she gave for abducting the child was that she had no faith in the justice system. I tried to tease out why I should believe that she now has faith, such that she would comply with orders. She was unable to persuade me that her attitude had changed. Notably, she interfered in the change-over on 4 May 2008, despite a clear order for her brother to conduct the change-over.
I also have no doubt that she has involved the child in the parental dispute. She is right when she says that it is inevitable that a child will know of the dispute between his parents. However, she seemed to rely on that concept as an excuse for involving him further, rather than sparing him as much as possible. In passing, she gave an example of sitting in the car outside the supermarket, shaking, and telling R to go inside for her, as the father was in there and she was too frightened. That was in front of the child. So was the incident on 4 May 2008. So were discussions about the secret plans to leave E in January 2008.
I can look at how the mother has involved R in the dispute, as a possible predictor of whether or not the child will be drawn into it. I have already noted how she drew R into the conspiracy of her abduction of the child. She had her swear an affidavit in this case. She had her at court on the first day of the hearing. And she either directed, or was at least complicit in a florid letter written by R to the parents at the child’s school on 18 December, 2007, which cited in detail a litany of criticisms of the child’s father. It was an ugly airing of family affairs for this poor little child. Given the mother’s defence of the “openness” and “mutual respect” of the relationship with R, it does not auger well for the child being spared from the adult dispute, if he lives with his mother, particularly a very long way away from his father.
I note that although in her affidavit the mother pointed to her co-operative relationship with R’s father as an indication of her willingness to support a father/child relationship, during the hearing she conceded he had little involvement, and she had really been able to raise R as she wished.
In her first Family Report in 2006, Ms D observed that the mother was “somewhat dismissive of the child needing to maintain a relationship with his father and that it was not clear that she would encourage, promote and facilitate a long-term parental relationship for [the child] with his father”. In her second report, her view was unchanged, and indeed fortified by events in between. Ms D was clear in her evidence that the mother’s time with the child should at present be supervised, with the risk of her further absconding. The evidence, as I have noted, supports that.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Although the mother emphasises that the child lives “in the here and now” and that he will always be happy once he settles with either parent, in my view she has underestimated the effect of a long-term separation from either of the two parents he loves. Her claim, that in FNQ he was happy and contented and showed no ill-effects of being away from his father or other family members, did not ring true, especially when she talks of the utter devotion he feels for R, from whom he was separated for many months. The father’s evidence that the child took some time to settle when he returned to him, that he was then happy and is happy, but that he does miss his mother and sister, strikes me as the more astute and honest assessment.
The mother shows little insight in the way she underestimates the effect on the child of being separated for lengthy periods from either parent. If I follow her proposal, it is likely that R will be with them in Queensland and that is to the benefit of the child. If I follow the husband’s proposal, the child will be with friends and in familiar circumstances in Victoria and will spend one week-end per month with the maternal family with whom he is very close. If R stays in Victoria, the child will have the opportunity to see her with his grandmother. The relationship is important to him, but I cannot overlook that R will leave school after a year. Her life and the child’s are on different trajectories, given her age. And it is hard for the mother to emphasise the importance for the child to be with R, when it was she who separated them for months’ of this year.
Unfortunately, the proposals with which I am presented are such that there is going to be a very significant change for this child one way or the other. Neither is ideal, but with his father I am more confident that he will see his mother than the other way round.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is a very real consideration in this case. The mother is choosing to live in an area very remote from where the child currently lives. The father earns a modest income of $40,000. The mother’s income is quite uncertain. The expense of travel will be very onerous. The distance is vast. It will effectively take a full day for the child to travel by road for two hours to Cairns, to fly four hours to Melbourne, before travelling another distance by car to country Victoria. He is very young and for a considerable period will need to be accompanied so that will involve additional expense.
I have no doubt that wherever he lives, some regular communication will be possible, at least by way of Skype, telephone and shortly email and writing. That will be to his benefit, although a limited compensation for such substantial blocks of time away from each parent.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
I have dealt with relevant aspects under this heading, in other parts of my reasons for judgment.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have dealt with this above.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This is not a case where I can be confident that any orders I make will put an end to litigation. If I make the orders sought by the father and the ICL, I know the mother will not be satisfied, as her time with the child in the short term will effectively be supervised. If I make orders in accordance with the mother’s proposals, the child will be taken a very long way from his father and I am not persuaded that he will be returned or made available in compliance with orders.
I can only hope that the end to this litigation may give the family some peace, so that clarity of mind and wisdom will prevail, and trust will be re-built, in the child’s interests.
(m)any other fact or circumstance that the court thinks is relevant.
I am conscious that I have seen the mother in this case without the moderation or filtration that a legal representative can provide. I am conscious that I have not seen the father in the same way, as he was represented.
A theme in the mother’s evidence, and most pronounced in her closing submissions to me, was her expressed lack of faith in “the family law system”. She described the court system as “patriarchal”, and therefore better suited to the child’s father than to herself. She spoke of the system not finding “the truth”, operating in a different reality from her own reality, and being ill-suited to resolving family disputes. She spoke too of now being “politicised” into protesting against the system, as a result of her experience.
I fully support the mother’s right to hold those views. I am conscious too how daunting it must have been for her running the case on her own behalf, particularly in the emotional circumstances of presently seeing so little of the child. And no-one could claim that the justice system has every answer or every mechanism to deal with the exquisite complexities of broken families.
The mother gave an impassioned speech about the need to resolve differences without litigation, and that love and commonsense should enable her and the father to resolve issues about the child’s future. My only issue with what she said was that it was inconsistent with what she claimed as a history of abuse and control and the various faults she attributed to the father. It was also naïve. It failed to take into account everything that had passed between them, most particularly the still recent wounds of the abduction.
In her affidavit sworn 13 October, 2008, the mother swore at paragraph 55:
Love will be restored with a win-win result.
She seems to be referring to what she perceives as a “win-win” result between the adults – presumably sharing the child throughout the year, between the States – failing to see that is not necessarily a result that is a “win”, when it comes to the child’s best interests overall.
The mother has a tendency to shift blame onto others. It was largely the father’s fault that she absconded with the child. It was the police’s fault that R was so distressed by her absence. Ms D was at fault for being biased in her report. And over-arching all that, it was “the system’s” fault that the child is not with her at present. What she appeared not to engage with was her own fault, at least as a contribution to all that has befallen her. There was a graphic illustration when I pressed her to consider her alternatives if she were not permitted to take the child to FNQ. She complained that she was being presented with “Sophie’s choice”. To the contrary, the choice was her own.
The “politics” at the heart of the mother’s submissions overlooked the immediate issues in relation to the child’s welfare, upon which she was so hard to draw, especially when I asked her to address me about the detail of orders and particularly her proposals if she could not take him to Cairns.
CONCLUSON RE CHILD ISSUES
I am satisfied that the presumption of equal shared parenting applies in this case. I agree with the ICL that, to avoid uncertainty and conflict, the father should be given the specific capacity to enrol the child to attend full-time school. I do not propose adhering to the request on behalf of the father that he have the capacity to make all educational decisions for the child. His mother certainly has a role and a capacity to contribute to those decisions. However, the issue of home-schooling as opposed to mainstream schooling is clearly on the table, and should be resolved by these orders.
Although I envisage potential difficulties in how the parents might resolve major issues, on balance it is important for the child not only to have the input of two loving parents but also to know that both are responsible for him. It is important though that they have recourse to community counselling before any return to the court, in the event they cannot agree on the major decisions.
I am bound to consider if it is in the child’s best interests for an order that he spend equal time with each parent. On the mother’s proposals it is envisaged that he will either be living with her, or with his father, but either way, at the opposite end of the country from one of his parents. In those circumstances, I cannot find it is in his best interests or reasonably practicable for him to spend equal time with each parent. Nor do I find it is in his best interests or reasonably practicable for him to spend the blocks of time with each parent, as proposed by the mother. It is contrary to the expert evidence. It is also contrary to logic and commonsense. For the child to be thrust into two different worlds for extended periods, needing to repeatedly pick up the pieces of completely disjointed existences, and to be separated from a parent he loves for very extended periods of time, cannot be in his best interests. Moreover, I am not confident that if he spent the substantial blocks of up to 16 weeks at a time with his mother in Queensland, that she would be prepared to unsettle him by returning him to his father when it was time to do so.
Ideally for the child, his parents would live sufficiently close that he could spend substantial and significant time with each of them. The mother’s current intention is to live a very long way away. I must proceed on that basis, although I hope that when the dust settles on this hearing, she may re-think that position. In the meantime, doing the best that I can, I propose adopting the orders proposed by the ICL, which also provide for a regime if the mother is living in Victoria rather than Queensland.
I am satisfied on Ms D’s evidence, and on the evidence in its entirety, that initially the mother’s family should be in substantial attendance during periods she spends with the child. Trust does need to be re-built. Her recent conduct in taking the child, and her conduct throughout these proceedings, leads me to conclude that supervision is necessary. The ICL and the husband have proposed that it should last until late in 2010. I propose a slightly shorter period, that is until the end of the July or mid-year school holidays in 2010. It allows the emotion surrounding this case to subside. It allows a settled period for the child. It allows the father’s trust that the mother will return the child to be re-built. It is in the child’s best interests to have the protection of supervised time for the next 18 months or so, but the best outcome for him will be if trust is re-built so that his mother can then spend unsupervised time with him.
Given the conundrum with which the court is presented, there is no ideal outcome. I am satisfied that within the constraints, these orders though are in his best interests. They will ensure stability for him with a loving parent in a community where he is known, settled, and well-cared for. They will ensure that he spends time with his maternal family, including his sister, if she remains in Victoria. And he will see his mother in a secure setting, protected against the possibility of any further major upheaval to his little life, and long-term separation from his father and extended maternal family.
I am satisfied that it is fair for each parent to meet half the airfares for the child to spend time with his mother.
I have made orders to ensure that the child may obtain a passport and be permitted to travel with his father to see his paternal grandmother. I have not structured the order precisely as sought by the husband. His proposal was for the Airport Watch List order to be temporarily suspended upon certain events. I am concerned it would be difficult for the Airport Officers to know if such events had occurred. I do not want grief for the child at the point of departure. I propose an order whereby the husband must give certain notices to the wife. I have also proposed permitting one specified trip overseas. I hope it will create clarity for the officials, but I would welcome submissions about the detail of these orders.
I invite submissions too on the form of the orders more broadly. I have necessarily proposed some orders about which there was not necessarily specific or detailed submissions, for example in relation to Christmas, telephone calls, airfares, and any change-overs in E that are not occurring at the child’s school.
THE PROPERTY ISSUES
INTRODUCTON
The property proceedings are brought pursuant to s 79 of the Act. They were only a very minor part of these proceedings.
The process of deciding a property settlement is a four-step one:
·I must identify the property and assess its value. In this case, it is agreed.
·I must consider the contributions made by the parties including direct and indirect contributions both financial and non-financial, as well as contributions to the family, including as home-maker and parent. In this case the only issue relates to some money provided by the husband’s parents and how it should be treated.
·I must consider a range of factors as set out in s 79(4) and s 75(2) of the Act, amongst which is the factor that the child will be living predominantly with his father.
·I must arrive at a decision that is just and equitable in all the circumstances.
THE ASSETS AND LIABILITIES
The assets are agreed as follows:
·Proceeds of sale of the former matrimonial home $80,385.63
·2000 shares in Australia Ethical Equities held
by the husband on trust for the child $ 1,916.00
·Wife’s Toyota Camry $ 1,500.00
·Husband’s Ford Laser $ 1,500.00
·Household contents Nominal
·Wife’s Bendigo Bank Account Not known
·Husband’s Bendigo Bank Account $ 25.00
Total $ 85,326.63
·Husband’s Super Fund 1
(as at 23 September 2009) $ 25,111.91
·Husband’s Super Fund 2 (as at 24 September 2008) $ 13,712.00
·Husband’s Super Fund 3 (as at 24 September 2008) $ 217.14
Total $ 39,041.05 Total $124,367.68
The liabilities are agreed as follows:
·Loan from the paternal grandparents for the
payment of the mortgage over the former
matrimonial home $ 6,096.00
·Joint credit card debt at separation
(paid by the husband) $ 1,500.00
Total $ 7,596.00
Total assets $116,771.68
The father has also received loans from his father for legal fees, in the realms of some $75,000, and he has his own Mastercard debt of $7,500.
CONTRIBUTIONS
It is submitted for the father that he should receive substantial credit for the contributions he made at the start of the marriage. He had a superannuation interest, having started to pay into Super Fund 1 in 1996. He had $23,700 in cash. And his parents contributed about $80,000.
The father’s parents’ contribution of $80,000 was made in two payments in September 2004, just two months before the parties’ marriage. That money, and the husband’s money that he brought into the relationship, as well as $5,000 contributed by the wife’s mother, were used towards the purchase of the former matrimonial home, in June 2005.
As to the $80,000 contributed by the father’s parents, his father, the paternal grandfather, swore that he gave it to his son as a gift. In cross-examination, he agreed that it was a gift to his son and his wife on the marriage.
It is clear from the authorities that the presumption is that a gift from family is generally to the party who is related. It is usually deemed as a direct financial contribution by or on behalf of that party alone. From the Full Court’s decision in W and W [2000] FamCA 1302, it appears that the presumption is hard to rebut. Human behaviour is such that parents generally want to do right by their children, adult or not, and frequently do not stop to draw clear distinctions between them and their partners when, for example as here, helping them to buy a home for their married life.
Although the paternal grandfather agreed he made the gift to the couple to purchase their home, I am not persuaded that it was a gift intended for them to share, so much as to enable a home to be bought, a home that could not otherwise be afforded. The paternal grandfather’s on-going desire to help his son has been obvious since separation. He has helped him with mortgage repayments and legal fees.
In my view it is unrealistic to proceed on the basis that this money brought in at the start of a very short marriage was an equal contribution of the parties. Its genesis was from one side alone.
I am satisfied in a short relationship of five years, with an extremely short marriage of 18 months, the father made by far the more substantial contribution, taking into account the monies he brought into the relationship and the substantial gift from his parents that enabled the property to be purchased a relatively short time before separation.
SECTION 75(2) FACTORS
The parties are similar ages. They are both in good health. They both have modest income-earning capacities. The mother has R to support, as well as herself. She obviously receives great assistance from her mother in that regard. The maternal grandmother is paying R’s boarding fees at College.
The child will reside with his father, and on the mother’s current proposal will not spend significant time with her. The father has not received any child support and it is unlikely that he will receive any substantial financial assistance from the mother. As a result of the parenting orders, in addition to his financial support of the child, the father will need to contribute to air-fares for the child to see his mother.
The factors I must consider weigh in favour of an adjustment to the father.
CONCLUSION ON THE PROPERTY ORDERS
It was submitted for the father that a 70/30 split of proceeds from the former matrimonial home, and just over 25% for the wife overall, would be a just and equitable outcome. He proposed to pay the mother a total of $28,615 (arrived at as 30% of the home proceeds, and $4,500 as a share of superannuation). With her car, the mother would retain $30,115 of the total pool. The father would retain the balance of the monies from the sale of the home ($50,270.63), his future superannuation entitlement ($39,041.05), his car, his bank account balance ($25) and the small sum he holds on trust for the child. He would have responsibility for the joint loans of $7,596. On that basis, he would retain $85,156.68 from the total pool.
The mother made no submissions in relation to the proposed outcome.
I conclude that the husband’s proposal represents a just and equitable property settlement. It fairly reflects his superior contribution at the start of the short relationship, and that he shall be caring for the child without the prospects of substantial financial assistance from the mother. The father shall retain a sum with which to move forward, as well as his modest superannuation entitlement. The mother shall have her own small nest-egg.
The husband has sought that no monies should be distributed to the wife until his cost application has been resolved. In particular, he has forewarned that he seeks the costs expended by him in attempting to locate the child when he was secreted away by the mother. I shall deal promptly with the question of costs, and shall provide for the funds held in trust to be distributed shortly thereafter.
The husband sought an order for a Registrar to sign any documents if the wife refuses. As the only signature that is envisaged is to release funds to the wife as well as the husband, I do not find that such an order is necessary.
THE ORDERS
I propose the following orders, subject to further submissions, including on the question of costs:
The Parenting Orders
That all previous parenting orders shall be discharged.
That subject to paragraph 3 of these orders, the husband and wife shall have equal shared parental responsibility for the child … born … January 2002.
That the husband shall be entitled to keep the child enrolled in full-time formal schooling.
That each parent shall be entitled to attend all school functions and receive all school documents ordinarily available to parents, and to that end, the husband shall do what is necessary to ensure that the child’s school forwards duplicate copies of reports, information and documents to the wife.
That the child shall live with the husband.
That the child shall spend time with the wife as follows:
(a)If the wife is residing in Victoria:
(i) During school terms each alternate week-end from after school Friday until 5.00pm Sunday, save that if the wife is living within 1 hour’s drive of E, then until the commencement of school on Monday, starting the first week-end of each school term;
(ii) During school terms, from the conclusion of school to 6.30pm each Wednesday, provided that time is spent in the E area, and the wife shall return the child to the husband outside the E police station;
(iii) For one half of each school holiday period being the first half in the 2008/2009 summer holidays and 2009 school year, the second half in the 2009/2010 summer holidays and 2010 school year, and alternating thereafter;
(iv) On the week-end of Mother's Day from 5.00pm Saturday until 5.00pm Sunday on the proviso that if Father's Day falls on a “time with” week-end, then the wife’s time is suspended from 5.00pm Saturday; and
(v) On each of the wife’s and the child’s birthdays for a period of three hours as agreed between the parties and in default of agreement, from 3.30pm to 6.30pm in the E area; and
(vi) By telephone or webcam each Wednesday between 6.30pm and 7.30pm and at other reasonable times.
(b)If the wife is not residing in Victoria:
(i) From the first Saturday until the last Saturday of the July or mid-year term holiday;
(ii) For four weeks of the summer holidays being the first half in the 2008/2009 holidays, the second half in the 2009/2010 holidays, and alternating thereafter;
(iii) When the child is otherwise with the maternal family;
(iv) By telephone or webcam each Wednesday;
(v) Christmas Day, Mother's Day, and each of the wife’s and the child’s birthdays between 6.30pm and 7.30pm and at other reasonable times; and
(vi) By letters and cards.
That for the purposes of the wife’s time with the child pursuant to paragraph 6 of these orders, the time shall take place:
(a)In the substantial attendance of either of the maternal grandmother, the maternal uncles or their wives, but not R without one of them; and
(b)In Victoria
until the end of the 2010 July or mid-year term holiday.
That while the child is with the wife, the husband is permitted to contact him by telephone or webcam each Wednesday between 6.30pm and 7.30pm and at other reasonable times.
That for the purpose of travel if the wife resides outside Victoria, once the child is spending unsupervised time with her, the wife shall pay for and arrange travel at the start of her time with him and the husband shall pay for and arrange travel at the conclusion.
That any change-overs which do not take place at the child’s school or outside the E police station shall take place at the service station at … and handovers shall be effected by either of the maternal grandmother, the maternal uncles or their wives and in the absence of the wife and/or R.
That each parent shall keep the other parent advised of their current residential address and telephone contact numbers to be used only in case of emergency.
That the wife shall sign and return to the husband a passport application for the child within 14 days of these orders and in the event that she fails to do so, the husband may obtain a passport for the child without the wife’s consent.
That once a passport has issued for the child, it shall be held by the husband and he shall be at liberty to take the child overseas for one trip of no more than 28 days’ duration in the 12 month period from the date the child’s passport is issued, provided that otherwise the child’s name shall be placed and maintained on the Airport Watch List at all points of departure from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.
That the husband’s solicitor shall forthwith arrange for service of a sealed copy of this order on the AFP and the Marshal of the Family Court of Australia.
That at least 28 days before the husband takes the child overseas he must give to the wife in writing:
(a)Notice of his intention to take the child overseas;
(b)Details of his destination while away from Australia;
(c)An itinerary including the departure and return details; and
(d)A contact telephone number
That each party by themselves, their servants and/or agents shall be and are hereby restrained from:
(a)Denigrating the other in the presence or hearing of the child;
(b)Discussing the proceedings in the presence or hearing of the child; and
(c)Discussing with the child the circumstances leading up to his leaving Victoria with the wife in January 2008.
That in the event that the wife fails to return the child to the husband at the conclusion of any visits pursuant to these orders, then all such “time with” orders shall be immediately suspended and the wife shall not have time with the child without an express written agreement between the parties, or further order of this Court.
That pursuant to s 65DA and s 62B, 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 these particulars are included in these orders.
That the appointment of the ICL shall be and is hereby discharged.
The Property Orders
That within 14 days of the costs issue being finally determined by me, the parties shall do all acts and things to ensure that the proceeds of the sale of the former matrimonial home held on their behalves shall be distributed as to:
(a)$28,615 to the wife;
(b)$51,770.63 to the husband; and
(c)any additional interest 70% to the husband and 30% to the wife.
That the husband shall retain:
(a)Any funds he holds as Trustee for the child;
(b)His 1993 Laser motor vehicle;
(c)His Mastercard debt;
(d)The debt to his parents for payment of the mortgage over the former matrimonial home; and
(e)The entirely of his interest in his Super Fund 1. Super Fund 2 and Super Fund 3 superannuation funds.
The wife shall retain her Camry motor vehicle and superannuation, if any.
That within 14 days from the date of these orders, the wife shall make available to the husband any photographs, video tapes and other pictorial records of the child, and the husband shall be at liberty to make copies of all those items, at his expense, and he shall return the originals to the wife within 14 days thereafter.
That unless otherwise specified and save for the purpose of enforcing the payment of any money due under the proposed settlement:
(a)Each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at this date;
(b)Monies standing to the credit of the parties in any joint bank account is to be divided equally between the parties;
(c)All insurance policies shall become the sole property of the owner named thereon; and
(d)Each party is to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That otherwise all existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation in the Court.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
I certify that the preceding one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau
Associate:
Date: 7 November 2008
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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Procedural Fairness
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