Wilton and Leary and Anor

[2016] FamCA 1168

FAMILY COURT OF AUSTRALIA

WILTON & LEARY AND ANOR [2016] FamCA 1168

FAMILY LAW – CHILDREN – BEST INTERESTS – Interim – Application by the father to suspend final orders made by consent – Where the proceedings are between the father and the maternal grandparents – Where the child’s biological mother is deceased – Where the substantive proceedings involve an application by the father to relocate overseas – Where the Court is not persuaded that there is enough evidence to justify an interference with the orders.

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Wilton

RESPONDENTS: Mr Leary and
Ms Leary

FILE NUMBER: SYC 4107 of 2012

DATE DELIVERED: 5 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 5 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Judge

SOLICITOR FOR THE APPLICANT: Goldrick Farrell Mullan

COUNSEL FOR THE RESPONDENT: Mr Guterres

SOLICITOR FOR THE RESPONDENT: KD Holmes Solicitors

Orders

1. Orders in terms of paragraphs 3 of the Response to an Application in a Case filed 2 December 2016, as set out hereunder:

3.     That for the purposes of implementing Order 1.1(iv) of the Orders made on 29 October 2013:

3.1The Father will deliver the child to [K Street, Suburb L], being the house of the maternal grandfather’s sister, namely [Ms M Leary], and pick up the child at the end of her time with the maternal grandparents, each day.

3.2For the purposes of Order 1.1(iv) made on 29 October 2013, the dates will be the 16^th, 17^th and 18^th of January 2017.

1. The Court notes that there will be an application for expedition of proceedings and that on the filing of the application contact will be made with the associate to Justice Loughnan to seek a return date before Justice Loughnan.

1. The child, B born … 2010, be represented and request for the Legal Aid Commission to make arrangements for that representation as soon as practicable.

1. The Registry notify the Commission and that the parties provide all relevant applications and affidavits to the Legal Aid Commission as soon as practice.

1. The Court notes that the child is currently travelling around Australia and is six years of age and that in the event that the request is made by her lawyer to speak to the child consideration might be given to that occurring by electronic means in the first instance.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC4107 of 2012

Mr Wilton

Applicant

And

Mr Leary and Ms Leary

Respondents

REASONS FOR JUDGMENT

1. These are interim parenting proceedings in relation to B, born in 2010.  There were earlier proceedings in this court, which led to final orders being made on 29 October 2013 in terms agreed between the parties, who were the father and the maternal grandparents.  Those orders provided for time between the child and the maternal grandparents on a graduating program ultimately leading to holiday time made up of block time, five consecutive days in the midterm school holidays on and from this year and some time that was to be time shared between New Zealand and Australia. 

2. There were contravention proceedings started in the Federal Circuit Court, and they were resolved.  I think they might have been heard in about April 2014 and determined in the middle of the year.  In December 2015 there was a fresh application for final orders filed by the father seeking that the child be relocated to Asia for a period.  The proceedings were later transferred to this court. 

3. The matter before me is the father’s application filed on 23 November 2016.  This is the first return date.  He seeks that the orders of 29 October 2013 be suspended.  The application is opposed.  Both parties are represented.  There is no representation for the child, and that needs to happen.  There is no opposition to that appointment and I will make that order today. 

4. The child was born in 2010.  Sadly, later in 2010 the mother died.  It is noted in the father’s chronology that the parents were in a stable de facto relationship and planned to marry.  The orders that I have identified were made 29 October 2013 by consent, and that followed a family report dated 2 May 2013.  In October 2013 the father commenced living with his current wife, Ms G.  They were married in 2015.  She is a health professional.  I think she says that she treats children, adolescents and adults but has some experience in relation to children, obviously. 

5. By his application filed on 4 December 2015 the father seeks by way of interim and final orders that the orders of 29 October 2013 be discharged and that the child spend time and communicate with the maternal grandparents as agreed between the parties in writing.  And it is apparent in his case that he wants to relocate.  He plans to relocate with the child to Asia.  The child was adopted by the father’s wife in May of this year.  There is no issue about the Court’s permission being required to interfere with the parental responsibility position because of the sad fact of the mother’s death. 

6. There were contravention proceedings, as I have indicated, and ultimately the father was placed on a bond on 16 August 2016 which included a monetary term.  It might have been $15,000 or something like that.  In any event there was a further breach.  He says in his affidavit that he pleaded “guilty” to that contravention.  In fact he acknowledged that there was a breach of the orders but sought to establish a reasonable excuse in relation to the breach.  A breach of an order occurs where a person deliberately breaches the order or makes no reasonable attempt to comply.  Therefore it is not correct to say that the father pleaded “guilty”.  Even then he says that his plea was wrong and was given on legal advice.  Perhaps he means that he does not agree that he deliberately breached the orders or made no reasonable attempt to do that.  

7. The father’s wife’s take on the situation is that he was found to have contravened the order for following a doctor’s recommendations.  That is unlikely to be true.  A judge has found that there was no reasonable excuse in relation to the breach.  I do not think there has been an appeal against that decision.  Therefore it cannot be as described by the father’s wife.

8. That brings us to today.  I understand that there has been no time between the maternal grandparents and the child since early this year.  There should be time in January 2017.  It would have been in New Zealand.  They have suggested that they would come to Sydney.  I took it from something that Mr Guterres said that when they made that offer they did not know that the father had gone travelling. 

9. The evidence is that the father owned a company which he recently sold.  His current job is as the vice-president of an Asian-based company.  The father says that he cannot undertake the full extent of his role within that company until he moves to Asia.  He says that his plan was for his family to travel around Australia in a caravan, with his wife taking up work where she could.  He says that he and his wife no longer have any ties in Sydney.  They sold up in September 2016.  He and his wife felt as though they were in limbo, because they could not act on their desire to move to Asia for a period until these proceedings were sorted out.  In the meantime they decided they would take the opportunity as a family unit to provide the child with the benefit of travelling around and spending time in different parts of Australia prior to moving to Asia.  They left on 31 October 2016, travelling through New South Wales and South Australia.  They stayed at N Town and O Town.  They travelled to P Town for the father’s wife to take up a position there on 28 November.  They moved on to Perth.  The father deposes:

   Our hope is to be in a position to cut short our Australian travels and relocate to [Asia] at the earliest opportunity.  If not, we will continue heading round Australia via [H Town], [I Town], Darwin and J Town returning eventually to Sydney to finalise the litigation to enable the family to relocate to Asia. 

10. I understand that the family is now somewhere in Western Australia.  The father’s case is that his relationships with the respondents were never good, that over time they have deteriorated.  He says that he and his wife have identified problems in the care of the child by the maternal grandparents and for the time being he thinks their time with her should be suspended.  Thrust of the application is until further order, but in arguing his case, Ms Judge for the father says, “at least until there is an Independent Children’s Lawyer (“ICL”) on board and we can try and get to the bottom of some of the concerns that have been raised.”  Happily or unfortunately, the adoptive mother has found herself in two roles.  She is a health professional with some experience in relation to children and she has reported on her observations of events.  She has been with the father for a considerable period and I gather she would say that she now has a loving relationship with the child.

11. Unfortunately, she has also sought to express her opinion about medical matters, about the psychological health of the deceased mother, about the personalities of the maternal grandparents, about the child’s vulnerabilities and the causation of her presentation and about what should be done in relation to those things.  It is readily acknowledged in the father’s case that she cannot be the expert in the case.  However, as Ms Judge says, neither can it be expected that she turn off her professional antenna and make no observation about the things that she has seen.  Of course, she cannot pretend that she is not partisan.  She could not be a relevant expert in these proceedings even if she was the mostly highly trained and experienced forensic child expert in the universe.  It may also be the case that on an ethical basis, there are even difficulties for her in formally treating a member of her family.  That is a matter for the father’s wife and her professional obligations.  However, I can promise her that she will not be involved in these proceedings as a relevant expert.  Now, of course, she is the child’s adopted mother and may be a witness in the father’s case.  She may be of assistance to the father’s lawyers and perhaps to any single expert or treating practitioner in relation to the child.

12. The timing of the problems asserted about the child’s time with the maternal grandparents is unfortunate.  They would say that there seems to be an attempt to exclude them from the child’s life, coincident upon the time when the father plans to relocate to Asia.  The father will contend that affronted by his proposals for a move to Asia, the maternal grandparents have decided to act badly in relation to him and the child, for that reason alone.  The latter interpretation is unlikely to be true.  People do not usually turn into monsters for those reasons alone.  Trust can be lost, of course. 

13. My obligation is to make orders in the best interests of the child.  The legislation says you do that in a series of steps. 

14. In proceedings between a parent and a non-parent, some of the rigidity of assumptions and presumptions is avoided. There are relevant criteria set out in s 60CC of the Family Law Act 1975 (Cth). They start with primary considerations and there are two of those, the second one being more important than the first. The first one is the benefit of a child having a meaningful relationship with both parents. I do not think there is anything about this case that interferes with that priority. Any orders that are made would give priority to the importance of the relationship between father and daughter.

15. There is no application by the maternal grandparents to take the child away from the father and the adopted mother.  There is no suggestion on the father’s case that the importance of his relationship with his daughter is diminished because of communication or spending time with the maternal grandparents. 

16. The need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.  Well, there are some allegations about that and some concessions.  It is not possible to get to the bottom of those things.  In a decision of Goode and Goode (2006) FLC 93-286 while observing that the court needs to follow the legislation, there is some acceptance that it is not always possible to make findings about disputed issues of fact in interim proceedings.

17. It is alleged that the maternal grandparents have been significantly resistant to applying prescribed or required medical treatment to the child.  Ms G talks about the implementation of a program she had in place from the middle of last year in respect of wetting - soiling and said that the maternal grandparents would not take part in that program.  It was a problem that Ms G was able to identify as linked only to the maternal grandparents.  That is a brave prediction, but there is that concern and some others in relation to treatment.  There are allegations in relation to neglect in terms of the child returning from a visit blistered and dehydrated.  There are allegations or concerns about the presentation of the child on returning from the maternal grandparents’ visits, distressed and acting out.

18. Again, a single expert forensic psychiatrist may be more cautious about attributing a cause to those problems than Ms G.  A child may act out where he or she is simply tired or is sad about leaving someone.  Upset does not necessarily mean that the child was abused by the person he or she has just been with.  Here there are serious allegations and just because I cannot make probative findings about them, does not mean that the allegations are false or inaccurate.

19. A considerable number of the allegations pre-date the finalisation of the contravention proceedings.  They pre-date any application by the father to interfere with the orders.  That would normally mean that the allegations are not soundly based, that they were not serious or that they were not so serious as to justify an interference with the orders.

20. As to the views expressed by the child, at her age, there is not much that can be taken in relation to that.  There is not much evidence about her views and, of course, there is no independent evidence.  Children can tend to say things that they think the person they are with wants to hear.  They can want to please adults, so you never know. 

21. As to the nature of the relationships of the child with her parents and with other persons.  There is some evidence about that.  The maternal grandparents give evidence of having lovely interactions with the child.  There are some photographs attached to the affidavits.  I have rarely known a case where they have been of any value.

22. The extent to which the parents have taken opportunities to spend time etc is not relevant.  The extent to which the father has fulfilled his obligation to maintain a child - not relevant. 

23. The effect of changes in circumstances - not really relevant, although, as Mr Guterres says, there is a bit of a worry for the young child if her relationships are interfered with for a long time.  Children have a different sense of time to adults and there can be damage to a relationship if it is interfered with for some years.

24. As to the practical difficulties and expense or arrangements.  Well, as things have happened, the father has taken the child as far from New Zealand as is possible, without leaving mainland Australia.  That has caused a practical problem and not one of the maternal grandparents’ making.  That is important to say. 

25. I understand the father’s case to be that the maternal grandparents should show goodwill by making an effort to do more.  I do not think he means a meeting in Alice Springs.  I gather that the expectation is that they would travel to Western Australia.  I do not have any evidence that would enable me to make a decision about that.  By that I mean, there is no evidence about the financial circumstances of any of the parties. 

26. The capacity of the parents and the others.  Well, there is no application that makes sense of a complaint about the father’s capacity, no application, for example, to interfere with his time with the child.  There is a complaint about the grandparents’ capacity.  As a technical matter, there is a concession that they were adequate in October 2013 when the orders were made.  There was no complaint in a formal sense between then and December 2015.  And even then it is not entirely clear that the complaint was about their capacity rather than the consequences of the move.  I cannot make findings that there are problems in relation to their capacity on that evidence. 

27. Maturity, sex, life-style, background, including culture and traditions of the child.  That has changed a bit, of course.  There is a now a Asian connection for the child.  She is young.  She is a girl.  There is no Aboriginal connection. 

28. There is nothing about the attitude to the child and the responsibilities of a parent or demonstrated by the parents.  There is complaint, of course, but no orders are sought to interfere with the parent child relationship. 

29. There are allegations of violence.  I cannot make findings about them.  There is an extraordinary concession in the father’s affidavit that he caused a pierced earring to be restored to a child’s ear, causing her agony.  There are the allegations about the maternal grandparents.  They include things like blisters and dehydration.  As with bruising on a child or nappy rashes, they are categories of things that can happen even in a loving household.  There is no necessary connection between those things and poor parenting. 

30. There are no family violence orders.  The aim of having no further proceedings is of not much help in interim proceedings.  Nothing else comes to attention. 

31. It comes down to this.  I need to have a good reason to interfere with an order that was put in place at the parties’ request.  On each side it is alleged that the reason why circumstances might have deteriorated may have nothing to do with the child and nothing to do with the parties’ parenting capacities. 

32. The parties put a proposition to the court in October 2013 and asked the court to make orders accordingly.  That means they have to comply with the orders until one of them brings the matter back to court and explains that the orders do not work anymore.  If not, then the parties must comply with the order unless to do so would risk the safety of a person, including the child.

33. The matter was not brought back to Court seeking a change in orders until December 2015.  At the same time there was an issue about international relocation.   

34. In my opinion there is not enough to justify an interference with the orders.  I propose to make the orders that have been sought on behalf of the maternal grandparents.  That is orders in terms of paragraph 3 of the Response to an Application in a Case.  That was filed, I think, on 1 or 2 December 2016. 

35. There has been reference to expedition of the proceedings.  They only started a year ago, and sadly our delays are greater than that.  I am happy to either entertain an application for expedition on the material that is here, or if there is something else to be said, happy to make provision for that to be put on.

1. I am not saying there that there needs to be anything else.  I just do not know whether there is anything else.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 5 December 2017.

Associate: 

Date:  7 April 2017