WILKIE & KRIVKIN

[2013] FamCA 489

FAMILY COURT OF AUSTRALIA

WILKIE & KRIVKIN [2013] FamCA 489

FAMILY LAW – CHILDREN – Interim Parenting – Where the parties agreed that the child should live with the mother – Whether the mother and child should remain living in Sydney or be ordered to relocate to Melbourne – Consideration of the best interests of the child – Consideration of 60CC factors – Where, on the evidence before the court, it was determined that the father spend supervised time with the child – Where the order for relocation to Melbourne was not made on an interim basis.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the father made an application to have the proceedings transferred to another registry – Where the father’s application is refused.

Family Law Act 1975 (Cth) ss 61DA, 4AB, 65DAA, 60CC

APPLICANT: Ms Wilkie

RESPONDENT: Mr Krivkin

FILE NUMBER: SYC 419 of 2013

DATE DELIVERED: 21 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 20 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE RESPONDENT: Family Legal

Orders

1. That the Husband’s Application for Transfer to the Melbourne Registry is hereby refused.

2. That, pending further order, I make orders in accordance with the document entitled “Minute of Order Sought by Wife” dated 20 May 2013 and initialled by me and dated today, as set out herein:

   That pending further order:

   A.That the child O, DOB …/6/12, (“the child”) live with the mother.

   B.That within 7 days of the date of these orders the husband provide written authorities to the wife’s solicitors to the following practitioners/organisations:

   1)       [Dr A]

   2)       [Ms B]

   3)       [Dr C]

   4)       [Ms D]

   5)       [E] Mental Health

   authorising them to provide all medical health reports including but not limited to reports, medication, compliance and attendances and answer all reasonable requests in relation to the above matters made by the wife’s solicitor.

   C.That the father spend time with the child on the following basis:

   3.1      As agreed but not less than on one day per month;

   3.2      Such time to occur at the wife’s parents’ home in Sydney;

   3.3Such time to only occur with the supervision of one of the wife’s family members.

   3.4Such supervisor have the ability to terminate the time if they form the view that husband’s behaviour may be a risk to the child.

   3.5Such time to coincide with periods between the child’s day time sleeps and her breastfeeding.

   3.6That the father be entitled to have one family member from the paternal family present at each visit.

   D.That the parties have liberty to re-list the matter before the Court upon giving the Court and the other party seven (7) days notice.

   E.That the wife provide the husband with 14 days notice of her parents proposed date and time to collect the items of personalty being annexure “A” and up until that date the husband keep those items in good repair.

   F.That on the date nominated in order 5 above the husband make the items available by providing access to the house including unlocking doors and de-activating security code and car keys.

3. That the father shall spend time with the child on her birthday, at such times as agreed between the parties, and on the same basis as set out above in these orders.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkie & Krivkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 419 of 2013

Ms Wilkie

Applicant

And

Mr Krivkin

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. In these proceedings the parties seek a number of orders in relation to their child, O (“the child”), and some orders in relation to the property of the mother.  It was agreed that an order should be made that until further order the child live with the mother. 

3. Whether the child and her mother should remain in Sydney or be ordered to relocate to Melbourne was an issue before me as were the times and manner of the father spending time with the child.

4. The father agreed that an order should be made requiring him to provide a written authority to enable the mother to obtain reports from the father’s treating doctors and psychologist.  The father also agreed that orders should be made as sought by the mother that she have access to the former matrimonial home and to remove her and the child’s belongings.  The father opposed the mother removing the Apple computer.

5. The father sought and the mother opposed an order transferring the proceedings to the Melbourne Registry of this Court.

Brief Background 

1. The parties started cohabiting on 22 April 2006.  Each of the parties is presently 31 years old. 

2. The parties married in March 2009.

3. The child of the marriage was born in June 2012.  She is a couple of weeks away from her first birthday.

4. The parties separated on 8 November 2012. 

5. Prior to separation the parties had been living in Victoria.  The mother, however, had grown up in Sydney and her family continues to live here.  At the time of the separation the father signed a statutory declaration confirming that he did not object to the mother relocating or moving to Sydney on a permanent basis.  I shall return to that statutory declaration shortly.

6. The mother has not been in paid employment since 1 August 2011.  Thus neither of the parties is presently employed and each relies upon Centrelink benefits.  The parties own a home at F Street, Suburb G in Victoria, which is presently unencumbered.  The father has remained living in that property since separation. 

7. It is not in dispute that at the time of the separation the husband was suffering from a bipolar disorder, depression and anxiety.

8. In November 2012 he was admitted to the psychiatric unit of the H Hospital.  According to the hospital records the reason for his admission was that he presented under section 10 with the police involved due to possession of a gun and threats.  According to the Clinical Review Summary, which is part of Exhibit 2, he had threatened to put a gun to his head and mouth in an attempt to end his life.

9. His risk to himself and others was described as medium.  Although it was initially a voluntary admission it was made involuntary.  The father was discharged from the H Hospital on 6 December 2012. 

10. Since separation the father has sent many conflicting, confusing texts to the mother.  He has threatened to obtain a recovery order to enable the Federal Police forcefully to return the child to Melbourne. 

11. On 8 November 2012, prior to the mother moving to Sydney, the father signed the statutory declaration to which I have already referred.  It says, in part:

    I am writing this in sound mind, even being on antidepressants and apparently seeing a Psychologist, Psychiatrist and GP for issues such as depression, anxiety and bipolar. 

    I do not object to my wife and daughter ([the child]) relocating/moving to Sydney (on a permanent basis).  This applies now and in the future.  I will not try to get [the child] to live elsewhere apart from Sydney with her mum (if that is what my wife wants). 

    My wife and I must decide together all custody arrangements.

12. The father says that when he signed the statutory declaration he was suffering from the disorders that led to his hospital admission a few days later.  He says that he did not, in fact, intend to give permission for a permanent move to Sydney and thought that the trip was temporary.  It is neither possible nor desirable to determine the weight of this document on an interim hearing.  Much of the evidence that might be relevant to that issue is not before the court.

13. The statutory declaration does, however, on any view support the suggestion that the mother, at the least, believed that she had the father’s consent permanently to move to Sydney.

Legal Principles 

1. In these proceedings the paramount principle I must apply is to act in the bests interests of the child. In doing so I have to apply the relevant provisions of the Family Law Act.

2. Pursuant to section 61DA of the Act the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. That presumption does not apply if there are reasonable grounds to believe the parent of the child has engaged in abuse of the child or family violence.  Further, when the court is making an interim order the presumption applies unless the court considers it would not be appropriate, in the circumstances, for the presumption to be applied in making that order. 

4. I have already referred to the father threatening to use a gun to harm himself, which led to his hospital admission.

5. The Victoria Police records state that the father made this threat of suicide to a mental health practitioner and that he said that if this did not work he would initiate suicide by police incident.  The hospital notes within Exhibit 2 dated 11 December 2012 state:

   Past history of violence/threats to wife needs further exploration.

6. On 19 November 2012 Ms B, the father’s treating clinical psychologist, sent an email to the wife stating:

   I have contacted the [H] Hospital as he is currently in the Psychiatric Ward.  I spoke with [Ms I] (psychiatric nurse) tonight at 7.10 pm and she informed me that they were thinking of discharging [the husband] this week.  I have been informed of the gun situation and asked the psychiatrist, [Dr J], to contact me tomorrow as I do not believe that he should be discharged while in the possession of the gun. 

   In saying this if [the husband] is still in possession of a firearm and coupled with the threats made in our last session I would not come home.  Please stay at your parents’ place for the time being.

7. It is evident from that email that Ms B was of the view that in certain circumstances there was a risk to the mother and her child at the hands of the father. 

8. On 9 September 2012 a Non-Intervention Order, which counsel described as similar to an apprehended violence order in New South Wales, was made against the father for the protection of his former employer and the employer’s family.  The father had been dismissed from his employment on 23 February 2012.

9. On 3 October 2011 a non-intervention order was made in favour of another person. 

10. A similar order had been made against another person in 2001.  In 2002 the father was imprisoned for 70 days for breach of that order.  That, however, was a significant time ago and does not, therefore, carry a great deal of weight.   

11. The mother says that when they lived together the father often became angry, and aggressive when he lost his temper.  The father denies this. She does not allege any incidences of physical violence. 

12. In response to the suggestion that there were issues of violence or threats involving guns the father relied on a number of letters from his treating doctors and psychologist. 

13. Dr A, a consultant psychiatrist, in a letter headed ‘To Whom it May Concern’ dated 23 April 2013, indicated that the father was being treated under the Mental Health Act.  Dr A said:

    His illness has shown considerable improvement with ongoing treatment.  However, as [the husband] displayed lethargy and tardiness with Olanzapine it was changed to Tab. Quetiapine 100 mg, on the 4^th February 2013.  The dose of Quetiapine was subsequently increased to 200 mg daily at night.  With treatment [the husband’s] mental state remains fairly stable.

14. He then said:

    … I am of the view that regular contacts between [the husband] and his daughter will help stabilise his mental state and promote father/daughter relationship.

15. Ms K is a case manager and a social worker with the E Mental Health Service.  She says that she has known the husband since December 2012.  Since that time there has been a noted improvement in his mental state and emotional wellbeing.  She says he complies with the conditions of his community treatment order and takes his medication as prescribed.  She says:

    We hold the opinion that regular contact with his daughter will have a positive impact on his mental state and promote emotional and mental wellbeing.

    She also says:

    In terms of our current role, we feel that [the husbnd] will require staying engaged with mental health services so we can continue to monitor his mental state, provide treatment and support with life stressfulness.

16. Ms B, in a letter of 1 May 2013 said:

    Since his hospitalization release, [the husband] has made considerable improvement.  In sessions, one of [the husband’s] themes has been the concern and sadness that not seeing his daughter has caused him. 

    Due to his continuing care needs, [the husband] needs to stay in Melbourne where his General Practitioner, Psychologist, Psychiatrist, as well as his Continuing Mental Health Care Team are located so that his mood can remain stable. 

    His relationship with his daughter is a crucial factor for stabilising [the husband’s] mood.  He has stated that not seeing her has hurt him greatly because he has missed “important growth time with her”.

17. Ms B does not deal with her concerns that she expressed to the mother in her earlier email in that letter. 

18. Dr C is the treating general practitioner of the father.  He notes that the father has been in his care for the last few years.  Dr C said:

    After his discharge from the [H] Hospital 6 M ago his psychological condition has improved significantly due to the fantastic efforts of his local priest, psychologist, [Ms B], and the psychiatrist. 

    He feels better with an optimistic approach to life with healthy living and losing almost 30 kgs. 

    The only setback is him not being able to see his daughter as often as he would like which could be detrimental to his condition.  This is due to his flying sickness and he also states that he suffers ruptured ear drums, besides the financial burden.

19. He concludes:

    This letter was written upon his request.

20. The hospital notes of Dr A of 4 February 2012 indicate that the medication to be taken by the father was not settled at that time.  It appears from his report that it was sometime afterwards that his current dosages were arrived at. 

21. None of these reports complies with the rules for the provision of expert evidence.  In particular, the reports do not set out the expert’s understanding of their obligations as experts in this Court.  None of these reports gives a diagnosis of the husband’s present condition, describes the symptoms or how his condition might affect others.

22. In those circumstances the weight to be given to them is to be guarded.  I accept, however, that this material shows that the view of his treating professionals is that the father is compliant with his medication and his condition is progressing well. 

23. Section 4AB of the Family Law Act defines family violence and exposure to family violence. Whilst on the facts before me there is a clear risk of self harm and perhaps harm to others, particularly if the father’s condition is not controlled by medication (and there is evidence of a time when he took many times a prescribed dose), the evidence does not establish that there are reasonable grounds to believe that the father has engaged in family violence as defined by s 4AB.

24. However, because this is an interim hearing brought on quickly, because there is no family report, because there is no adequate psychiatric reports and no opportunity to test them, it is not appropriate for the presumption in section 61DA to apply. In the circumstances of this case, in making the order that I am about to make, I do not think it is appropriate for the presumption that there be equal shared parental responsibility to apply. Thus section 65DAA has no application.

25. One of the two primary considerations raised by section 60CC of the Act is for the child to have a meaningful relationship with both parents. The child is not quite one year old. Her mother has always been her primary carer. There is evidence that they have a close bond.

26. The father has not seen the child for some time.  It is, however, appropriate and in the child’s interests for the father to see her so as to develop and maintain a relationship with her. 

27. The other primary consideration raised by s 60CC is the need to protect the child from psychological harm, from being subject to or exposed to abuse, neglect or family violence.

28. I have already discussed the family violence.  As the matters stand the risks that I have identified can be minimised by appropriate supervision when the father spends time with the child.  He does not oppose supervision of the time he spends with her. 

29. Section 60CC requires consideration of a number of other matters.

30. The child is not yet one and cannot express any views. 

31. She seems to have a good relationship, having regard to her age, with her parents and her maternal and paternal relatives.  The mother will remain the primary caregiver and thus decision maker.  The father seeks frequent time with his daughter, but given her age, communication will be limited.

32. The only effective way the father can communicate with O is to spend time with her.  Telephone communication and Skype would not permit any communication to take place given the child’s age.  If she is in Sydney the father would need to travel to Sydney.  The father and Dr A say that he has difficulty flying, though I note that he has now flown to Sydney at least three times. 

33. There was originally an issue in the proceedings as to who should have possession of the car registered in the mother’s name but in the father’s possession.  Ultimately, the mother did not press for the return of the car.  The father can therefore avoid flying by driving to Sydney.  The fact that he is unemployed means that he may not be able to afford this as often as he would like but it means he has the time available to do so.  His lawyer said on instructions from the bar table that driving for that time will make him nauseous. 

34. His suggestion is that the mother ought to be ordered to return to Melbourne or if she is to stay in Sydney she should fly to Melbourne fortnightly at her expense.  That is not practical either, because she is unemployed and because she cannot afford to do so.

35. Nevertheless, it is desirable for the child to spend time with her father taking into account the practical difficulties arising from the distance and the parties’ restricted income.  Unless the mother was to return to Melbourne, on balance, the practicalities favour the father spending time with the child in Sydney.

36. The mother appears to have the capacity to provide for the child’s intellectual and emotional needs.  I have some concern about the father’s capacity arising from the evidence of his treating professionals.  The evidence he relied upon dwelled more upon the benefits to him and his psychological wellbeing of seeing the child rather than on hers.

37. This is also relevant when considering the father’s attitude to the child and the responsibilities of parents.  By that, I do not mean to suggest that the father does not love and care for the child, rather that the focus seems to be at present on his needs rather than his child’s.  The mother, on the other hand, has enabled many members of the paternal family to spend time with the child when they have travelled to Sydney.

38. The other subsections to section 60CC have no particular relevance to this matter today.

39. It is not in the best interests of the child for her mother to be required to travel to Melbourne for these reasons:  The mother lives with her parents and her sister in appropriate accommodation in Sydney and thus has the practical support of her family as well as their emotional support.  That is in the child’s best interests.

1. It was initially proposed by the father that if the mother was required to return to Melbourne she could live with his mother.  That would clearly be unsatisfactory.

2. In submissions he conceded that he would vacate the former matrimonial home if a return was ordered thus enabling the mother to live there.  There is no evidence before me as to the current state of those premises, although there is indication that locks have been changed and items have been removed. 

3. If the mother was returned to Melbourne the proposed supervisors of the time the father would spend with the child would be his mother or his sister.  Neither gave evidence.  He sought to read an unsworn copy of an affidavit from his mother, which I declined to permit.

4. One of the reasons I did so was that it would have been of little value in any event, because the father’s mother did not set out her understanding or knowledge of the father’s condition, why supervision was considered appropriate by the parties and the role that she would need to play in that supervision.  She does not set out what she was told by her son in relation to his condition or the needs for supervision. 

Conclusion

1. The child and her mother are now settled in Sydney.  The mother says that she does not wish to be near the father.  Conflict between the parties is significant as is evidenced by the texts sent by the father.

2. Putting the parties into closer physical proximity is not likely to reduce that conflict and that would not be in the interests of the child. 

3. For those reasons I will not order a relocation to Melbourne. 

4. The father should spend time with the child in Sydney for the following reasons.

5. The mother cannot afford to travel to Melbourne fortnightly. 

6. There is no impediment other than costs and the time of the father travelling to Sydney.  Whilst it may not be pleasant for him to do so he has flown on three occasions already and he now has the car available to him.  The child is still young, she is still being breastfed.  Travel is likely to be disruptive to her routine and tiring for her. 

7. I am not satisfied there would be adequate supervision if time to be spent with the child was undertaken in Melbourne, therefore, the time the father is to spend with the child will be in Sydney.

8. The orders proposed by the mother provide for the father spending time with the child as agreed, but not less than one day per month.  The history of time spent to date is that, subject to adequate notice being given, the mother is prepared to make all reasonable time available to the father.  If he can manage it there would be more time spent with the child than one day per month.  If this can be managed that would be desirable.

9. The father did not draw an issue with this evidence in his affidavit in reply, thus pending further order I make the orders in the Minute of Order provided by the mother and dated 20 May 2013, initialled by me and dated today. 

10. I also order that the father spend time with the child on her birthday as agreed on the same basis as the other time he is to spend with her.

11. I will not transfer this matter to the Melbourne Registry for the time being.  It is not yet known what matters will require the attention of the court and the evidence that will be relevant to them.  Whilst there may be expert witnesses in Melbourne as well as lay witnesses it is likely that there will also be lay witnesses from Sydney and possibly expert witnesses.  Expert evidence can in appropriate circumstances be given by telephone.

12. I do not see any present benefit in a transfer to the Melbourne Registry and that application is refused. 

13. The mother seeks the return of a number of items of property.  That order is not opposed, save for the item of property described as the Apple computer.  The husband’s submissions were that it is his computer and that he needs it to co-ordinate his treatment and the like. 

14. The mother sought the return of the computer in her Initiating Application filed on 30 June 2013.  In her supporting affidavit she described it as hers and set out the circumstances surrounding its acquisition and use.  The father did not give any evidence about the computer in his affidavit in response.

15. The only evidence as to the computer is therefore that of the mother and on the basis of that evidence I will order its return.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 May 2013.

Associate: 

Date:  6 June 2013