Anderson and Anderson

[2010] FamCA 766

FAMILY COURT OF AUSTRALIA

ANDERSON & ANDERSON [2010] FamCA 766

FAMILY LAW – CHILDREN – interim orders – application by the father seeking orders that the child live with him – where the father was previously granted a Recovery Order on an ex parte basis – where there are serious allegations concerning each parties’ capacity to parent – best interests – orders that the child return to the primary care of the mother and spends time with the father upon condition that the mother return to the Adelaide metropolitan area

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Mr Anderson

RESPONDENT: Ms Anderson

FILE NUMBER: ADC 1707 of 2010

DATE DELIVERED: 24 AUGUST 2010

PLACE DELIVERED: BRISBANE by video link with Adelaide

PLACE HEARD: BRISBANE by video link with Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 24 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Subramaniam

SOLICITOR FOR THE APPLICANT: Priya Subramaniam

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse

Orders

IT IS ORDERED THAT:-

1. Paragraphs 1 and 2 of the orders made by the Honourable Justice Dawe on 12 August 2010 be discharged.

2. Further consideration of the proceedings be adjourned to the previously adjourned date at 9.30 am on Friday 10 September 2010 before the Duty Judge (the Honourable Justice Burr).

3. Pursuant to Section 69ZW, Families SA be requested to prepare a report as to their involvement with this family and the general circumstances impacting upon the child E (“the child”) born … September 2004 and that such report be provided to this Court on or before 4.00 pm on Wednesday 8 September 2010 with a copy provided to each of the parties.

4. Until further order, the child continue her education at the W Primary School.

5. The parties make immediate arrangements to re-engage in mediation at Relationships Australia with a view to resolving their differences as to the future care arrangements for the child.

6. If there is no objection and subject to any privilege claimed, leave is granted to the parties to inspect and copy the documents produced pursuant to the subpoenas directed to the South Australian Police, the Commonwealth Bank of Australia and Dr K.

7. Within twenty-four [24] hours the father make arrangements for blood alcohol and drug testing pursuant to the chain of custody protocol and that he file and serve an affidavit annexing the results of such testing forthwith upon receipt of same and prior to the adjourned date for hearing.

8. Both parties are restrained and an injunction is hereby granted restraining either of them from removing the child from the Adelaide metropolitan area SAVE AND EXCEPT as otherwise agreed between them in writing or as otherwise ordered by this Court.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. Until 6.00 pm today (24 August 2010) the child live with the father.

2. As and from 6.00 pm today (24 August 2010) the child live with the mother UPON CONDITION that the mother forthwith relocates to the Adelaide metropolitan area.

3. The parties have equal shared parental responsibility for the child.

4. Handover of the care of the child from the father to the mother to be effected at 6.00 pm today (24 August 2010) be conducted outside the McDonalds family restaurant at C in the State of South Australia.

5. The father spend time with the child from the conclusion of school on Friday 3 September 2010 until the commencement of school on Monday 6 September 2010.

6. The father be entitled to communicate with the child by telephone as follows:-

   (a)on the Tuesday and the Thursday of each week for a period of time between 6.30 pm and 7.30 pm; and

   (b)on Sunday 29 August 2010 for a period of time between 6.30 pm and 7.30 pm

   the father to initiate the telephone call to the mother’s mobile telephone number 04….

7. The mother ensure that her mobile telephone is both charged and switched on to facilitate the father’s telephone communication with the child pursuant to paragraph 14 hereof.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1707 of 2010

MR ANDERSON

Applicant

And

MS ANDERSON

Respondent

REASONS FOR JUDGMENT

1. I have before me today the Application of the father filed on 11 August 2010 and the Response of the mother filed on 17 August 2010.  The father’s Application is that the sole child of the parties’ relationship E (“the child”) born in September 2004 live with him.  His Application though was more than that.  He sought, on an ex parte basis, that the child live with him and that he be granted a Recovery Order to secure the immediate care of the child in circumstances where the mother had no knowledge of his Application.

2. Dawe J, on 12 August 2010 having only the materials filed by the father before her, granted the ex parte application and made the Orders that the child live with the father and for a Recovery Order to issue.  She then adjourned further consideration of the matter before me to 10 September 2010. 

3. The mother has now responded with a detailed affidavit filed on 17 August 2010 in which she essentially refutes most of the allegations made by the father in the affidavit which accompanied his Initiating Application.  The father then responded by filing yet another lengthy affidavit today putting in contest many of the issues raised by the mother in her detailed responding Affidavit.  The matters raised in the affidavits are not new to this Court and in fact they intrude upon a large part of the Court’s core business.  Again, it is not an unusual occurrence that the parties have raised a number of very serious allegations each against the other in respect of which it is not possible for the Court to make any definitive findings until those matters are tested on evidence.  The allegations made by both though are concerning. 

4. On the father’s part he alleges that the mother could potentially be suffering some mental health issues and that she has in the past threatened suicide.  He also complains of her erratic behaviour and more particularly as it impacts upon the child, of the two occasions in the past 8 months when she has left the Adelaide metropolitan area with the child and went to live with her parents in the Riverland.  

5. For her part the mother makes allegations of a concerning nature against the father in relation to some very serious drug and alcohol abuse issues.  The mother’s allegations in that regard in fact find some support on the father’s own case.  In his affidavit filed today he makes reference to a couple of episodes of drink driving and some other drug and alcohol abuse issues.  His case is that it is not any longer an issue for him but he does, somewhat disingenuously in my view, make reference to the fact that his doctor prescribed Campral for him which is a drug used in order to treat alcohol dependence, but says that he did so simply in order to appease the wife’s concerns about his alcohol issues.  I suspect that a doctor who readily prescribed a drug such as Campral without proper grounds or reason might find himself or herself facing disciplinary action.

6. Thus there are issues still to be determined as between the parties and it is not appropriate for me to make any more definitive findings in relation to those allegations other than the brief passing reference I have already made.  However, there are some areas of sufficient concern raised in relation to the case presented by the father in terms of the manner in which he has so far conducted this litigation before the Court.

7. He does not dispute that the mother was the child’s primary care giver since birth and since their separation in 2009.  It is his case though that the mother was supported in that role to a significant extent by his own parents.  I am informed from the bar table that the paternal grandparents are considering whether or not they will bring any application themselves for orders in relation to the child.  However, even acknowledging their support, the fact remains that the primary role was one vested in the mother. 

8. It would seem that in December 2009 she went to the Riverland to live and arrangements were made between the parties that the child spend regular time with the father on weekends from Friday through to Sunday.  The mother returned to Adelaide in May 2010 and the parties attempted, what turned out to be, a fairly short lived exercise in reconciliation.

9. What is instructive though about the father’s case, given that he contended to Dawe J that the circumstances were so urgent that it required both an ex parte hearing and ex parte orders, is that there was no previous indication by him to any authorities or to the Federal Magistrates Court or this Court that they were matters of such gravamen and concern that the child ought to be removed from the mother’s care.  Indeed he brought no applications and as I am presently instructed, although information may come to light later which contradicts this, there were no reports made to Families SA, to the child abuse report line, to the police or to any other authorities.

10. The father failed to mention in his affidavit filed today that he had arranged for the police to check on the child in the mother’s care and had received advice from the police that in their view the child was perfectly happy and well cared for.   There are emerging elements of concern as to the manner of construction of the father’s case and an inability to properly present matters that ought to be before the Court for its determination.

11. Similar concerns arise because of his indication as late as the submissions through his Counsel today, that he would be perfectly content with and indeed promotes in the future, a shared care arrangement.  If he had the grave concerns for his daughter at the hands of the mother as he alleged to Dawe J and again in the documents filed today, he would not be promoting a shared care arrangement and nor would he have allowed the child to have remained in the mother’s care for such lengthy periods of time leading up to his quite inflammatory ex parte application.  There is further history on the Court file already as to the fact of the father having no complaint prior to his pre-emptive strike on 12 August 2010.  There are a number of references that I can make in that regard but one is in annexure “JSA1” to his own affidavit filed on 11 August 2010 which is a copy of a letter forwarded by his solicitor to the mother’s solicitor dated as recently as 18 March 2010, months after the separation between the parties.   In it, it is stated:-

    “We are instructed that the child has been spending time with our client on each weekend and that this has proceeded well.  Our client is very keen to spend time with the child on a regular basis on each weekend.  He is concerned that your client has recently suggested that he spend each alternate weekend with the child.  Given the distance between the Riverland and Adelaide, our client feels this would in effect limit his relationship with the child and deny her the opportunity to have an ongoing relationship with him and his extended family in Adelaide.  Our client feels that it is in the best interests of the child for the current arrangements to continue, especially because there has been so much disruption in the child’s routine as a result of the recent separation and your client’s relocation to [the Riverland].”  (The emphasis is mine).

12. The point is further emphasized by the father in that same letter in a subsequent paragraph which reads:-

    “In the long term, our client suggests that if the parties reside within thirty kilometres of each other then they should have shared care of the child on a week about basis….”

13. There is significant evidence already that the father has been disingenuous in his matters raised before the Court and deliberately presented a scenario to Dawe J which was inaccurate and misleading.  In all of the circumstances I am not satisfied that he has the best interests of his daughter at heart when presenting only part of the story to the Court. 

14. It is a great shame that the matter has deteriorated so rapidly, that deterioration having been caused by the manner in which the father decided to conduct his affairs before this Court, given the manner in which the parties had previously been able to mediate and negotiate their arrangements.  Prior to his application, the parties were able to resolve most of their issues by using those means and it has to be said that it was a credit to them that they were able to do so.  For reasons best known to him, the father decided that that was no longer the approach to be adopted and he instead pursued what I have already described as quite inflammatory action.  The more serious consequence of his inflammatory action was as to the impact upon the child. 

15. It may well be possible to suggest at a later stage when more evidence is available that it was an entirely thoughtless and heartless action on the father’s part.  Those of us who have been engaged in this jurisdiction for a long time know how dramatic the implementation of a Recovery Order can be.  As is usually the case the Recovery Order was effected in circumstances where no prior knowledge was given to the mother or to the child.  Instead police officers arrived at the mother’s doorstep and took the child into their brief care before handing her to the father.  Most parents would give their left arm to spare their child such a traumatic set of circumstances.  I only hope that with the benefit of hindsight the father will recognise just what his actions may have meant to his daughter and how it may well have been conducted in a far better way.

16. The Family Law Act requires me to have regard to multiple provisions in making even an interim determination about what might best represent the child’s interests.  That obligation is imposed on the Court by Section 60CA which recites that the Court must regard the best interests of the child as the paramount consideration.  In doing that, the Court is directed to the multiple provisions of Section 60CC of the Act.  That section is divided into “primary considerations” and “additional considerations”.  The primary considerations are always difficult for a Judge to deal with on any interim basis as they are in direct conflict.  It obliges the Court to endeavour to keep a child safe from physical and psychological harm in circumstances where that Judge also has to explore the benefit to the child of having a meaningful relationship with both parents.  On any preliminary view of the matter, the child had the benefit of enjoying a healthy and loving relationship with each of her parents prior to the action taken by the father.  Whilst the father may well be able to prove in the future that he had legitimate concern about the limitation of his time with the child, and hence his capacity to maintain a meaningful relationship with her in circumstances where the mother removed herself and the child to the Riverland on a couple of occasions, there is no suggestion that the parties do not otherwise recognise the importance of the child’s relationship with the other parent prior to the action implemented by the father.   It is to be hoped that that meaningful relationship can be continued.  All preliminary indications are that the child loves both of her parents and enjoys spending time not only with each of her parents but with her extended family members.  There is constant reference in the material already of the role of both the paternal and the maternal grandparents.

17. The allegations that give need to protect the child from any physical or psychological harm are somewhat clouded at this stage.  We have the father’s allegations that the mother presents a risk not only to herself but to the child in terms of her mental health but we also have allegations that the father’s abuse of alcohol and drugs, certainly in the past, may have had an impact upon issues of safety for the child.  All of those matters are to be explored.

18. For now I am sufficiently satisfied from the material before me that the child should continue to enjoy her relationship with both of her parents and with her extended family members.  It is also my view that that can only be effected in the interim stages by the mother returning to live in the Adelaide metropolitan area in order to resume her care of the child and to enable the child to continue her important relationships with her other family members, but particularly her father.

19. In my view it is not necessary to detail further findings under each of the additional considerations raised by Section 60CC.  Suffice is to say that I have had general regard to those provisions in terms of exploring the nature of the relationship the child has with her parents and extended family members, the willingness of the parents to facilitate and encourage continuing relationships and the capacity of each of her parents to meet the child’s emotional and intellectual needs.  Other matters that require the Court’s consideration are matters which will need to be explored more fully in the ultimate trial of the proceedings.  Having said that, it is still to be hoped that there will not need to be a detailed trial of the proceedings and the parties will again engage in the very constructive mediation processes adopted by them in the past.    I note that that process quite readily resolved financial issues between the parties and in some respects had provided to the parties a vehicle for resolution of the child related issues as well.

20. In all of the circumstances, as I have indicated, it is my view that the child’s best interests are represented by an order that she return into the primary care of her mother today but upon the condition that she immediately return from the Riverland to the Adelaide metropolitan area to reside.  Indeed the order that I make is conditional upon the mother’s residence in the Adelaide metropolitan area.

21. It is important though that the father have as much time as is reasonable, given the child’s schooling, with the child and that the child can engage both with her father and her important paternal grandparents.  The child should return to the W Primary School where she has already received a substantial proportion of her education.  I will also make other orders to better equip the Court on the adjourned occasion to deal with the multiple allegations raised by the parties. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr delivered on 24 August 2010.

Associate: 

Date: 24 August 2010