Wince and Wince

[2018] FamCA 950

FAMILY COURT OF AUSTRALIA

WINCE & WINCE [2018] FamCA 950

FAMILY LAW – CHILDREN – Application to support interim relocation – mother alleges father is an unacceptable risk – interim orders for children to live with mother and relocate back to B Town – children to spend unsupervised time with father – proceedings transferred to Federal Circuit Court of Australia, Rockhampton Registry.

Family Law Act 1975, s.60CC

Goode & Goode (2006) FLC 93-286
Banks & Banks FLC 93-637
Morgan & Miles [2007] FamCA 1230
Campbell & Scalding [1998] FamCA 66

APPLICANT: Ms Wince

RESPONDENT: Mr Wince

FILE NUMBER: BRC 8629 of 2018

DATE DELIVERED: 16 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 12 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Bunning

SOLICITOR FOR THE APPLICANT: Wiltshire Family Law

COUNSEL FOR THE RESPONDENT: Mr G Shoebridge

SOLICITOR FOR THE RESPONDENT: Murdoch Lawyers

Orders

1. That the children, X born … 2013 and Y born … 2016 (collectively “the children”) live with the mother.

2. That upon and conditional on the payment by the father to the mother of a sum of not less than $2,000, the children shall return to live with the mother, pursuant to Order 3, to the B Town or C Town area, as the mother elects.

3. That the children shall return, unless otherwise agreed between the parents:

   (a)       within thirty (30) days of the father paying the mother at least $2,000;

   (b)       but not before 15 December 2018.

4. That the mother shall give the father written notice at least seven (7) days before she has relocated with the children, of the address of the home where the children will live and a copy of any tenancy agreement.

5. That upon the children returning to B Town/C Town, the children shall spend time and communicate with the father at all reasonable times as are agreed, but failing agreement:

   (a)       each Wednesday from 3.30 pm to 5.30 pm for both of the children;

   (b)       each alternate weekend during the Christmas school holiday period:

   i.for X from 9.00 am to 4.00 pm on the Friday, Saturday and Sunday of that weekend; and

   ii.for Y from 9.00 am to 1.00 pm on the Friday, Saturday and Sunday of that weekend.

   (c)during the period commencing with Christmas Eve (24 December 2018) and extending to Boxing Day (26 December 2018), for one (1) period of four (4) hours with both children, extended to seven (7) hours for X;

   (d)when the 2019 school year recommences, the period for Y to spend time with the father shall continue whilst the time X spends with the father will not include the fortnightly Friday when she is at school; and

   (e)unless otherwise agreed, changeovers shall occur at the McDonalds Restaurant C Town.

6. That without admission by the father, when the children are in his care the father shall:

   (a)not consume or be affected by illicit substances; and

   (b)not consume or be affected by alcohol likely to restrict him from lawfully driving a motor vehicle, specifically with a blood alcohol level above .05.

7. That Mr D is appointed a Court Expert to prepare a family report and in that respect:

   (a)the parents shall attend any interview or observation sessions nominated by Mr D; and

   (b)the costs of the Court Expert shall initially be met by the father, with leave granted to the father to seek a contribution to the costs of the family report from the mother.

8. That pursuant to Rule 11.18 of the Family Law Rules 2004 (Cth), these proceedings be transferred to the Federal Circuit Court of Australia, C Town Registry.

9. That these proceedings be adjourned to a date to be advised by the C Town Registry of the Federal Circuit Court of Australia.

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 Wince & Wince 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 BRISBANE

FILE NUMBER: BRC 8629 of 2018

Ms Wince

Applicant

And

Mr Wince

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. On 27 June 2018, the Applicant mother Ms Wince, aged 40 years, travelled to E Town with her two daughters, X born in 2013 and Y born in 2016.  Before that time they were living in B Town.  The reason for her decision to travel to E Town were expressed to the father, Mr Wince, aged 45 years, as being to enable the mother to undertake medical tests for an immune disorder.  The father says he believed the mother and children would be away for two weeks over the end of term 2 school holidays, which were due to finish on Sunday 9 July 2018. 

2. The father says he expected the mother and the children to return to the B Town area where the family had been living since 2014 and continued to live after the parents separated in late 2017, but lived under the one roof until 15 December 2017.  The father says that on 11 July 2018 he sent a text message to the mother inquiring when they were returning.  The mother, at paragraph 44 of her Affidavit filed 5 October 2018, acknowledges that the father continued to message her asking when she was returning, and she responded that she was waiting on medical results.

3. At paragraph 43 the mother sets out details of various tests and appointments between 6 July 2018 and 20 September 2018.  No corroborative medical evidence has been offered at this stage by the mother as to any diagnosis, prognosis, treatment plan and/or the seriousness of any condition.  It appears, from the limited evidence at paragraph 45 of the mother’s Affidavit, that testing was being undertaken and that further mental health plans were being discussed with the mother.

4. It will be a matter to be determined, if ultimately relevant, when the mother’s intention to remain living on E Town was formed, although, the mother says at paragraph 64 that she plans to live on E Town “until further medical testing has been performed as I have support from my family members.”  The mother and children currently live with their maternal grandfather.  The maternal grandmother, who was residing in the B Town area, has recently moved to live in Brisbane.

5. What is clear is that, without the father’s consent or knowledge, the mother enrolled X at a local state primary school, K School, from 6 August 2018 – about a week after the mother commenced proceedings in this Court by application filed 1 August 2018.  The mother’s application sought no interim orders, but merely sought an order for sole parental responsibility; that the children live with her and that the children spend supervised time with the father.

6. After the father filed his Response on 5 September 2018 seeking (as option one) that the mother cause the children to return to within 10 kilometres from the B Town post office and, inter alia, spend time with him in that area each alternate Wednesday and each alternate weekend from 9.00am Friday to 5.00pm Sunday, the mother filed an amended Application on 5 October seeking, as her preferred option on an interim basis, that she be permitted to remain with the children on E Town.  At least by this date the mother’s intentions were formally confirmed.

7. An interim hearing was conducted before me on 12 November 2018.  Mr Bunning of Counsel appeared for the mother, whilst Mr Shoebridge of Counsel appeared for the father.  The material they relied upon was identified and has been read and, in addition, on 2 November 2018 (when the matter was first before me) and then on 12 November 2018 further documents were tendered and have been considered.  Some of those documents the Court had requested.

8. Both experienced Counsel understood that in an interim determination there is, necessarily, a truncation in the process and findings are necessarily limited, because all the evidence remains essentially untested.  The process to be adopted has been settled by the Full Court decision in Goode & Goode (2006) FLC 93-286, further shaped by the Full Court decision in at least Banks & Banks FLC 93-637.  The paramount consideration is the best interests of the children.  The succinct history already given appears, on the current evidence, to be uncontested facts.  Much area is contested, the most concerning being the mother’s allegation based she says on a disclosure by the child, X, made 22 March 2018, that the father had “grabbed” her vagina.  Although I will turn to other relevant Section 60CC(2) and (3) considerations in a narrative style briefly, it is appropriate to deal with this allegation discretely at this stage.

Mother’s notice of child abuse and allegation of sexual abuse

1. On 1 August 2018 at the time of the original Application being filed, the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence and inserted at Item 6 that:

   1.        On or about 22 March 2018, the child, [X], woke the Mother complaining of having a sore vagina.

   2.        The child disclosed to the Mother that the Father had touched her on the vagina on or about 17 February 2018 at a time with [sic] the Father and Child were spending time together absent of any other person.

   3.        The Mother reported the child’s disclosure to the police and to the Father on or about 22 March 2018.

2. As no Affidavit is required under the Family Law Rules 2004 at the time of an initial parenting Application, the Notice of Child Abuse, Family Violence or Risk of Family Violence does not identify any other further particulars, however the mother was fully aware at the time she filed the Notice of Child Abuse, Family Violence or Risk of Family Violence, that the Queensland Police had formed the view, after a s.93A interview with X (which is Exhibit 2), and which the Court has viewed, and after further investigation by the police that the “offence did not occur”.

3. It is a matter that ultimately may be relevant for the trial that the mother asserted the abuse had occurred on 17 February 2018, which the mother claimed initially, and her Counsel on 2 November 2018 maintained on her instructions, was the only unsupervised time the father had spent with X since separation, and before the alleged disclosure on 22 March 2018.  That position was maintained until the mother chose, without direction from the Court, to file a further Affidavit on 9 November 2018 just before the interim hearing on 12 November 2018 where she now says that she is “reminded” that X spent time by herself with the father on 18 March 2018, which was two to three days before the alleged disclosure.  It is a matter for trial whether the mother had actually forgot about the contact on 18 March 2018 as she now deposes.

4. In any event, the police interview with the child, X, revealed a talkative little girl, anxious to answer questions and certain, in her accusation, that a little boy in her school had hurt her and hit her vagina.  She also alleges he had shown her photographs of nude little girls’ “private parts”.  These concerns were raised with the school by the police and have not, as yet, on the limited evidence available to me, been substantiated.  Importantly, she made no disclosures at all about any inappropriate behaviour by the father.

5. The mother, in her police statement (see Exhibit 4) details a conversation she had with X after the child had awoken, she says, at 1.00am and complained of a “sore fanny” and that she was “sore and itchy”.  The mother says that on examination two or three days earlier she had seen the child’s vagina as being “very red”.  The mother does not say why she did not take the child to the doctor two or three days earlier when she first noticed the redness.  The mother does not say if she applied cream to the child’s vagina area two or three days earlier as she did after the shower on the morning of 22 March.

6. What followed, according to the statement given to police and the discussion between the mother and the child whilst getting her into the shower, is open to a suggestion, from what the mother’s evidence says, that the mother was asking leading questions.  Again, the mother’s statement to police says (remembering the statements given 22 March 2018) that the only day that she had left X alone with the father was 17 February 2018.

7. It bears fuller scrutiny why the mother, on 22 March 2018, seemed to have forgotten a visit only a few days prior, but recorded as the “only” date the alleged inappropriate touching could have occurred was 17 February 2018.  These inconsistences are quite troubling, and certainly require a better explanation than I think the Court has been given to date.  Certainly, the mother did move quickly in daylight hours on 22 March 2018 to seek some medical advice.  However, the visit to Dr F of the G Clinic B Town at 11.40am on 22 March 2018 did, it seems to me, involve some unusual aspects in that:

   a)the mother informed the doctor that the child had disclosed “interference”.  Unfortunately, the limited medical notes do not suggest interference by whom.  The notes (Exhibit 3) did not have any sufficient detail to be clear what the mother told the doctor.  The mother informed the doctor she was going to the police.  She did so;

   b)the doctor did not examine the child.  The mother says the child refused to go into the doctor’s rooms.  Reasons for this child’s reluctance are unknown.  Certainly, at least as I observed the child on the s.93A interview, she was a very talkative little girl and seemed to be quite confident for a five year old; and

   c)rather than take a swab of the child, the doctor apparently gave the mother some implements to conduct the swab.  Although an entry in the medical notes of 22 March 2018 suggest the “wrong swab” was used, I am not quite sure anything turns on that irregularity.  The testing undertaken from the samples revealed no infection or matters of concern.

8. The mother, importantly, does not assert any other concerns about the father’s behaviour towards the children of a sexualised nature.  Whilst the Court would not wish to be encouraging parents to ignore concerning comments made by a child in all such events, parents have to sensibly consider whether they believe the allegation could be true, considering the nature of the disclosures any time, the past behaviour of the alleged perpetrator and any corroborating evidence.  It is becoming an increasing concern to the Court that, at times, these types of filters are not being applied before a parent rushes off to either the Department, the police or for medical attention – perhaps to gather evidence.

9. On the evidence offered to the Court now, and it is difficult to see how the evidence is likely to get any better, I am comfortable in finding that the father does not present as an unacceptable risk of harm to either girl due to sexual abuse.  I accept that often these matters are dealt with and await trial.  It is again a concern to me that often, on evidence not much stronger than this, matters have remained in the list for two or three years; supervised orders are made and/or children are denied their right of having any time with the parent without proper review of the material until the trial.  This, in my view, is a clear case that deserves this discrete issue being determined the way that I have.

10. Although the mother asserts she has concerns about the father’s excessive drinking, use of illicit substances and a lack of overnight time with the children, and in particular Y, such matters do not feature in the mother’s Notice of Child Abuse, Family Violence or Risk of Family Violence, nor would I expect them to be.  I can deal with these concerns with appropriate orders, knowing the father produced, admittedly not random, urine drug screen result performed on 24 August 2018 by the father (see Annexure AW2).  That drug screen revealed no illicit substances were detected.

Interim competing proposals

1. The mother’s interim proposal is for the children to remain living with her on E Town and that the father spend time with the children in a supervised environment on E Town.  Because the father continues to live in the B Town area in the former matrimonial home, the costs of travelling to E Town and for arranging accommodation and the like (before costs of supervision, which is what has been occurring at H Group already) is said by the father to amount to around $800 a visit.  As return airfares are involved, I regard that estimate as likely to be correct.

2. When pressed about the mother’s position, if the Court found that the children should return to the B Town/C Town area (and if the Court is satisfied that the father does not present as an unacceptable risk at this stage) Mr Bunning, on instructions, indicated the children should spend time between 9.00am and 1.00pm each alternate Saturday and Sunday, with the changeover at McDonald’s Restaurant, North C Town.  If the children are permitted to remain on E Town, the time is to be unsupervised and the time shall be the same but with changeovers at McDonald’s Restaurant, J Town.

3. The father says, as he does not present, in his view, as an unacceptable risk of harm to his daughters that they should return to B Town immediately or at least with seven days.  If the mother does not return with them, he says the children should live with him.  The mother says if the children are required to return she will also return.  In this case, the father’s competing proposal for interim orders are as set out in his case outline, namely, 3.30pm to 5.30pm each alternate Wednesday and each alternate weekend from 9.00am Friday to 5.00pm Sunday.  The father also seeks the children to spend half of all school holidays with him.

4. The parties have agreed to engage Mr D as a Single Expert to prepare a family report with interviews now arranged for March 2019.  I advised the parties to indicate whether it was possible to have a report writer before then, however, they say Mr D is their preferred report writer.  I will order that Mr D be appointed.

5. The father, in the Court event of 2 November 2018, when an inquiry was made of his Counsel by the Bench to indicate whether he would vacate the former family home in B Town and allow the mother and the children to live there if she returned, the father, through his Counsel, said she could.  The mother, in her recent Affidavit at paragraph 5, gives numerous reasons why she “will not move back into the property”.  Without in any way suggesting the reasons are reasonable or unreasonable, the Court would not regard it as appropriate to require coercively the mother move into the home (even temporarily) if she does not wish to do so.

6. The mother says if required to return with the children, it is likely she would seek accommodation in the city of C Town, possibly C Town, where rents are cheaper and more options exist than the smaller regional coastal town of B Town, which is approximately 40 kilometres, or half an hour drive, from C Town.  The father, through his Counsel, indicated he would be able to provide a payment to the mother of $2,000 to assist with her move back to the B Town area, which would also allow her to pay a bond.

7. It seems that after final separation in December 2017, the mother moved into rental accommodation in B Town, and that when she vacated the premises before moving to E Town, the bond paid was released to her.  The mother says that the bond had been used towards payment of legal expenses.  The father urges that the children are ordered to return and that they should do so within seven days.  The mother says it should not occur until just before the start of X’s next school year in late January 2019.

Discussion

1. I am conscious of the legal principles that do not require the mother to demonstrate any reasons why she seeks to relocate.  However, the evidence does not show that her medical condition is either chronic or could only be managed with specialist care on E Town.  The Court is able to take judicial notice that the C Town Hospital is a large institution that offers specialist facilities.

2. A number of authorities (including the decision of Boland J in Morgan & Miles [2007] FamCA 1230 which relied on the decision of Warnick J in some part in Campbell & Scalding [1998] FamCA 66, and which are both often quoted) make it clear that when considering interim relocation issues recent developments and circumstances flowing from a decision unilaterally made by one parent, in this case, the mother, should be given consideration, but seen within the context of one parent imposing such an arrangement on the other.

3. I accept that the mother has been the primary carer of these two young girls all their life.  The mother says the father’s employment has required him to work away on occasion for a number of days at a time.  In response, whilst not challenging her calculations of recent time away, the father says he has flexibility in his work arrangements and can make himself available to care for the children.  Whilst the mother has some doubts about this, time will tell.

4. I have formed the view that, on the current evidence, the children’s time with their father does not need to be supervised, and to give them the benefit of having the opportunity to develop and maintain a meaningful relationship with their father, which is in their best interests, such time needs to be regular.  As Y is only two years of age and is still having a daily nap (around 1.00pm each day) and is still being comfort breastfed, some limitations in the amount of time she could cope with away from her primary carer at this age must be considered.  X is older and could spend longer periods of time with her father.

5. Because of the disruption as to the opportunities the children have had to spend time with their father, I am not presently comfortable in making an order for overnight time.  However, on an interim basis, to achieve the regularity of time these children require, it is in their best interests, in my view, and I am satisfied, that they should return to the B Town/C Town area.  In my view, this should occur within 30 days of the father paying to the mother the sum of $2,000, but not before 15 December 2018, which is the first Saturday at the end of year school holidays.  I believe it is important for X to complete her school year at K School.  The mother can relocate to either B Town or the C Town areas as she desires.

6. In the circumstances of the required return of the children within 30 days or slightly longer, I do not propose to make orders as to the time the father spends with the children on E Town in the interim, save to suggest that daytime on weekends, unsupervised, should be negotiated.  The orders which I pronounce today set out the interim arrangements upon return by the children pending further order.  The parties, who currently have competent legal representation, are encouraged to make child focused arrangements for the Christmas period, with me making an order that it occur in some form.  I did not have sufficient submissions at the time to pronounce a specific order for the Christmas period, but it can take place in B Town because the mother will have returned by then.

7. On an interim basis I do not propose to make any specific orders about parental responsibility as the Family Law Act 1975 allows.  The presumption of equal share provisions of responsibility will therefore apply.

Circumstances

1. It is not appropriate, because of the age of the children and the current evidence of their relationships with the father, in my view, to consider an equal time order or a substantial time order.  There are no Domestic Violence Orders in place as far as I am aware.  When the report of Mr D is completed, the parties are being encouraged to further discuss longer-term arrangements.  This interim decision should not be regarded by either parent as an indication of the Court’s view as to whether any permanent relocation of the children to E Town is in their best interests.

2. As discussed with Counsel, the Court is minded to transfer these proceedings to the Federal Circuit Court of Australia, C Town Registry.  The issue of sexual abuse has been dealt with.  Neither Counsel opposed an order to transfer the proceedings, if the Court decided on an interim basis the children should relocate back to the Central Queensland area.  Accordingly, I will so order.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann delivered on 16 November 2018.

Associate: 

Date:  20 November 2018