Vancell & Wellen

[2021] FCCA 1004

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vancell & Wellen [2021] FCCA 1004

File number:	DNC 45 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	13 April 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – application concerning a child who is twelve years old – whether it is in the child’s best interests to live with the father or the mother – where the child lives with the father in Darwin – where the child spends time with the mother in Melbourne – where the mother has refused to return the child to the father – where the conduct of the mother raises questions about her parenting capacity – where there is evidence the child has been appropriately cared for by the father – where the child has expressed a wish to remain with the mother – where there is a disparity in parenting styles which may be influencing the child’s wishes – Court satisfied it is in the best interests of the child to live with the father.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 69ZT
Number of paragraphs:	24
Date of hearing:	13 April 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Franz of Darwin Family Law
Counsel for the Respondent:	Mr Atkinson
Solicitor for the Respondent:	Lawyers R Us

ORDERS

DNC 45 of 2021

BETWEEN:

MR VANCELL

Applicant

AND:

MS WELLEN

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	13 APRIL 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the interim orders numbered 4, 5, 11 and 12 dated 9 February 2021 be discharged and the other orders remain in full force and effect.

2.That the mother shall do all things to return the child X born in 2009 ("the child") to the father in Darwin on or before Saturday 17 April 2021.

3.That pending the final trial the child shall live with the father in Darwin.

AND BY CONSENT UNTIL FURTHER ORDER:

4.That the child shall attend B School, Suburb C and the father shall include the mother’s details on the child’s enrolment form including as her next of kin and emergency contact.   

5.That the child spend time with the mother as follows:

(a)During school holidays:

(i)from 2 July 2021 to 18 July 2021 at the end of term 2; 

(ii)for the first half of the school holidays at the end of term 3;

(iii)for the second half of the school holidays at the end of term 4; or

(iv)as otherwise agreed in writing between the parties.

(b)At other times when the mother is in Darwin during the school terms, provided:

(i)the mother has given the father reasonable notice of at least two weeks prior to the planned visit; and

(ii)such visit does not interfere with the father’s plans for the child during that time; and

(iii)such visit does not exceed 7 consecutive days except if it includes the school holidays in paragraph 5(a).

6.That in the event the mother’s family members are visiting Darwin, the father shall not unreasonably prevent the child from spending time with these family members provided this does not interfere with the child’s schooling and extra-curricular activities.

7.For the purposes of implementation of paragraph 5(a):

(a)the mother shall provide the father with a travel itinerary 14 days prior to the commencement of the child’s time with the mother in Melbourne; and

(b)the cost of the child’s travel be shared equally between the parties.

7.That the father shall be solely responsible for the tuition fees and the cost of the child’s extra-curricular activities.

8.That pursuant to section 62G(2) of the Family Law Act1975 (Cth), the parties and the child of the relationship attend upon Ms D, a Regulation 7 Family Consultant, on a date to be nominated by the Family Consultant for the purposes of the preparation of a Family Report being prepared at least one month prior to the trial call over.

9.That the matter be adjourned to a trial call-over list on 1 October 2021 at 10.30am (NT time).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Vancell & Wellen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter concerning X who has just turned twelve years old.  X’s father lives in Darwin.  X’s mother lives in Melbourne.  The parents appear to have separated finally in approximately September 2015. Since 2014 X has lived with her father in Darwin.  Both parents have re-partnered. In 2017, the father, Mr Vancell, re-partnered, and his partner has two children, one of whom, E, is approximately the same age as X. 

2. The father deposes that in 2020 it was agreed between him and Ms F, his partner, that scholarships would be applied for by X and E to attend a boarding school, G School in Adelaide.  Both children are Indigenous children. Full scholarships are available for them to attend that school in Adelaide. I do not know anything about G School directly. However, from hearing cases in this Court I do know that there are other children, particularly Indigenous children from Darwin, who have travelled to board at G School.  There is nothing to suggest that it is anything other than a school with a good reputation.

3. The father, perhaps regrettably, did not consult the mother about the scholarship applications. Once the application was approved and the scholarship had been granted to both children to attend G School this year the father told the mother.  She was unhappy about that proposal, and apparently remains of that view. It remains unclear as to why. Nevertheless, E, X’s step-sibling, has commenced at G School this year. It should be noted that X finished her primary schooling last year at H School and is due to commence the first year of secondary schooling this year in either Victoria, Northern Territory or South Australia.

4. In December 2020, the father agreed for X to spend three weeks of the Christmas holidays in Melbourne with her mother.  The mother did not return X. She refused to return her.  The reason offered initially was that X had expressed a strong wish to now live in Melbourne.

5. The father made an application to this Court reasonably promptly. This is the urgent hearing of his application for an order for X to return to Darwin. The mother responded.  She has made some mild criticisms of the father’s care, for example, that the child did not have clean underwear.  I do not know the circumstances in which the mother ascertained that information.  Presumably the allegation arises when X was with the mother in Melbourne. What the mother knows about the state of the child’s underwear in Darwin is unclear. The mother also alludes that the father’s home is unclean. How the mother would be aware of that is not clear from her affidavit material.

6. The allegation of the mother is somewhat inconsistent with a letter from the H Primary School dated 8 February 2021 which is annexed to an affidavit filed by the father. The letter confirms that:

   X always arrived at school on time. She was always dressed in a clean school uniform and well-groomed.

   The letter goes on to say that the child was provided with healthy food for morning break, recess and lunch.  The father communicated with the teacher throughout the year, and the child was happy and performed well at school. 

7. These are all indications of a child who is well-cared for and content.  The mother’s complaints about the child’s care are not supported by any objective evidence or independent evidence in the materials before me. I give those claims very limited weight.

8. The mother arranged for the child to attend upon Mr J who describes himself as a counsellor. A report from Mr J is annexed to an affidavit filed by the mother.  The report is a somewhat unusual document given that the only formal qualification I can see that is held by Mr J is a Bachelor of Commerce from Melbourne University.  As Mr Atkinson pointed out, however, a formal qualification is not the only road to expertise. Relevant experience is also a road to expertise. Examining Mr J’s curriculum vitae, which is attached to the affidavit, he has been a counsellor in various programs dealing with family counselling, particularly relating to drug and alcohol relief, and cults and religious movements. Mr J says he is the author of a number of publications including:

   (1)“K” (published in 1999);

   (2)“L” (published in 2008);

   (3)“M” (published in 2009)

   (4)“N” (published in 2009); and

   (5)“O” (published in 2011).

9. There is no indication in the report, the curriculum vitae or Mr J’s publications that he has any relevant experience relating to children, parenting disputes or the Family Law Act1975 (Cth) (the Act). In parenting proceedings that is no bar to a document being admitted into evidence because of section 69ZT of the Act. However, I give his report very little weight.

10. I also note, having read the report, it lacks balance and does not purport to be an analytical examination of the issues.  Mr J did not, for example, include an interview with the father or even suggest that that was sought.  It includes strongly worded wishes from the child expressed in unusually adult language.  As I say, I give the report little weight.

11. A document that I do give significant weight to is the Child Inclusive Conference Memorandum prepared by a Family Consultant pursuant to section 11F of the Act. The Memorandum is balanced, analytical and expert. The Memorandum sets out the background, more or less, in the terms that I have described. It contains views of both parents.

12. The Memorandum also sets out the child as saying that she loved both her parents and felt safe and secure with both of them. However, the child advised the Family Consultant that she wishes to remain in Melbourne.  The Memorandum went on to say:

    This needs to be considered in the context of X expressing excitement about being in a new city, and the allegations of a disparity in parenting styles, potentially affording X access to things such as ‘Snap Chat’ and ‘Instagram’ which she wasn’t allowed in Darwin.  It is currently unclear what influence…[this has had], possibly on her expressed wishes and feelings. It would be highly concerning if these factors were being used to influence X.

13. The father takes a view that access to social media is a clear factor. He is critical that there is evidence that the child has had access to a social media platform called TikTok which, according to him, is a social media platform with rules that make it not available to children younger than 13 years old. I do not make any findings about those matters, but I do accept that there is evidence that that is something of an issue. 

14. The Family Consultant clearly formed the view, largely on the history given by X, that she had been well-cared for in Darwin by her father and she had an excellent relationship with her father.  It seems that there is no criticism made of the mother either.  However, the Family Consultant expressed reservations about accepting the child’s wishes as determinative of the question before me.  In my view, the essence of the matter is largely and accurately summarised in paragraph 22 of the Memorandum, which I will read in its entirety:

    There are a significant amount of factors that should be considered when any substantial changes are made to a child’s living arrangements. This is due to children requiring consistent and predictable surroundings where they feel safe. In this situation, this decision appears to have been made by Ms Wellen, with no negotiation or discussions occurring between the parties.  This has resulted in X relocating in a way which has been unplanned, and relatively hostile. To an extent, this has undermined Mr Vancell’s capacity to intervene. Ms Wellen expressed that withholding X was motivated by what she believed best for her. It is however curious as to why Ms Wellen did not make an application to the court rather than withholding X. This could have provided a pathway that was more harmonious, and would have permitted X with ongoing normalcy in her care arrangement, until decisions were made by the court.

15. Those observations appear to me to be incontrovertible. In my view, the conduct of the mother raises some serious questions about her parenting capacity and her focus on this child.  However, these are questions, they are not matters that could be resolved in an interim hearing.

16. Mr Atkinson, counsel for the mother, submitted that the child should remain in Melbourne. It was also submitted that she was well-settled in her new school and there is no reason to doubt that.  An email was provided by the mother to that effect. 

17. It was said that the parties had agreed that a private Family Report would be prepared in early June 2021 with interviews to take place in May 2021. 

18. Having regard to the state of the Federal Circuit Court list, the other factor is that this matter would not be likely to reach a trial until the end of this year. When I say the end of this year, I am referring to October, November or December. It is possible that it may not be listed for trial until even early next year, though I would hope that would not be the case.

19. The Full Court of the Family Court has made it clear that the factors to be taken into account when determining a parenting case, either at trial or interim stage, are the best interests of the child.  As Mr Atkinson submitted, very often it will be in the best interests of the child that the “status quo” arrangements apply.  Of course the question then is – what is the status quo?  The child has been in Melbourne since December 2020.  It is now mid-April 2021. That is, arguably, the status quo.  The child has lived with the father in Darwin since 2014. Arguably, this is also the status quo. This reveals some of the difficulties in approaching a question like this in terms of status quo.  It is not particularly useful.

20. I can be confident, I believe, that the child was well-cared for in Darwin by the father.  She was appropriately housed, fed, and her welfare was appropriately cared for by her father.

21. Her father clearly has some reasonably strict views about access to social media.  I do not endorse or disapprove of those. They are simply something for him.  It is clear enough, I think, that those views are not shared by the mother.

22. These factors may well be transitory factors influencing the child’s wishes.  I do not know.  The child has just turned 12 years of age.  Her wishes are to be given weight, but in my view, are not determinative.   I can conclude that the child is well-cared for in Darwin.  It is proposed that she go to a secondary college here called B School, a private denominational school.  It has been confirmed that a place remains available for her there.

23. I have no concerns about the child’s care in Darwin. However, the situation in Melbourne, appears less clear. I am less satisfied that it is in the child’s best interests that she remain in Melbourne until, in all probability, the end of the year.  It might be that the child would be nearly 13 years of age then and her wishes would be given greater weight.  It may well be that the outcome of the trial would be that she would go to Melbourne, if all other matters were equal. However, I do not know what the outcome is going to be.

24. To conclude, I am satisfied that it is in the best interests of the child, having regard to all of the matters in section 60CC of the Act, that she return to live in Darwin with her father pending trial. There will be an order to that effect.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       12 May 2021