ASQUITH & GARNER

[2019] FamCA 729

FAMILY COURT OF AUSTRALIA

ASQUITH & GARNER [2019] FamCA 729

FAMILY LAW – CHILDREN – Mother returned to Australia by Maltese Court – Children in father’s care since July 2019 – Interim orders to 17 October 2019

FAMILY LAW – SPOUSAL MAINTENANCE – Agreed urgent lump sum order

Family Law Act 1975 (Cth), ss 60CC, s 77

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Asquith

RESPONDENT: Mr Garner

FILE NUMBER: BRC 11166 of 2019

DATE DELIVERED: 3 October 2019

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Baumann J

HEARING DATE: 2 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D Firth

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Mr R Cameron

SOLICITOR FOR THE RESPONDENT: McNamara & Associates

Orders

Interim parenting arrangements

1. That the children, X born … 2012 and Y born … 2014 (“the children”) shall live with the parents as follows:

   (a)Until 9.00am Friday, 4 October 2019 with the father;

   (b)From 9.00am Friday, 4 October 2019 to 5.00pm Monday, 7 October 2019 with the mother;

   (c)From 5.00pm Monday, 7 October 2019 until 9.00am Thursday, 10 October 2019 with the father;

   (d)From 9.00am Thursday, 10 October 2019 to 9.00am Sunday, 13 October 2019 with the mother;

   (e)From 9.00am Sunday, 13 October 2019 until 9.00am Wednesday, 16 October 2019 with the father; and

   (f)From 9.00am Wednesday, 16 October 2019 until further order with the mother.

2. That for the purposes of facilitating Order 1 hereof, the father shall be responsible for delivering and collecting the children from his uncle’s residence at Suburb G where the mother is currently residing.

3. That on a without admissions basis:

   (a)the parents shall not physically discipline either of the children;

   (b)the parents be restrained and an injunction issue restraining the parents from discussing these parenting proceedings with or in presence of the children;

   (c)the parents shall not make hurtful or denigrating remarks about the other parent’s household or lifestyle, their family or other parent’s family to or in the presence of the children

4. That the parents shall sign the application and such other documents as may be necessary for the children to apply for a sub-class 600 visitor visa by 12.00pm on 4 October 2019, with the father to file that application for the children prior to 6 October 2019.

Urgent spousal maintenance

1. That by consent, pursuant to Section 77 of the Family Law Act 1975 the father shall pay to the mother by way of urgent spousal maintenance the sum of $2,000 by 9 October 2019 to a bank account nominated by the mother through her solicitors within forty eight (48) hours.

2. That the father shall file and serve a Financial Statement by no later than 4.00pm on 11 October 2019.

Child Inclusive Conference

1. That the parents, the children and the father’s partner Ms B shall attend an appointment with Family Consultant, Ms C or such other Family Consultant as nominated by the Senior Family Consultant of the Family Court, Brisbane at 9.00am on 9 October 2019 at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.

2. That pursuant to s.11 of the Family Law Act 1975, the Family Consultant shall provide an advice to the Court and the parties that may include:

   (a)identification of the issues for the children;

   (b)a consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the children until there can be further investigations into the matter; and

   (c)such programs as may assist the parties establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.

3. That the Family Consultant is to prepare a brief written report.

4. That the Family Consultant shall have leave to inspect any subpoenaed documents.

5. That the parties shall ensure the attendance of the children upon the Family Consultant if considered appropriate by the Family Consultant.

6. That the Family Consultant and the parties shall have liberty to approach the Associate of the Judge to list the matter for any further directions and for that mention the Family Consultant shall have leave to appear via the telephone.

Independent Children’s Lawyer

1. That the children, X born … 2012 and Y born … 2014 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings and further, the Independent Children’s Lawyer be at liberty to issue any subpoena they deem relevant to these proceedings.

Airport Watch List

1. That until further Order or else subject to the written consent of both parents, each parent, X born … 1990 and Y born … 1989, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children, X born … 2012 and Y born … 2014 from the Commonwealth of Australia.

2. That the Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the children’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the children’s name on the Watch List until further order of the Court, or authenticated written consent of both parties.

3. That the parties exchange by 4.00pm on 15 October 2019 and have available to the Court on 17 October 2019 a minute of interim orders that they then contend for.

4. That these proceedings be adjourned for Case Management Hearing and further interim determination at 9.30am on 17 October 2019 in the Family Court of Australia at Brisbane.

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 Asquith & Garner 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 TOWNSVILLE

FILE NUMBER: BRC 11166 of 2019

Ms Asquith

Applicant

And

Mr Garner

Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. On or about 9 July 2019 the Applicant mother, Ms Asquith reluctantly returned to Australia from Malta with the parties’ two children, X (born in  2012 – now aged seven years) and Y (born in 2014 – soon to turn five years).  The mother’s return resulted from Hague Convention proceedings instituted in Malta on 30 November 2017 at the initiation of the Respondent father, Mr Garner, and after that application had been decided on 28 February 2018, and when the mother appears to have exhausted avenues for appeal (save for a pending application before Malta’s constitutional court) the mother left Malta with the children on or about 6 July 2019.

2. By this time the children had lived in Malta with the mother and had spent no physical time with the father, who had remained in Australia, for over 31 months.  These urgent proceedings instituted by the mother by an Application filed on 17 September 2019 arise because the children have now not spent any physical time with the mother since 9 July 2019, nearly three months.  The reasons for the mother’s delay in commencing proceedings is explained in her Affidavit filed 17 September 2019, associated with the mother navigating the Legal Aid and court systems.

Issues requiring interim resolution urgently

1. The matter proceeded on 2 October 2019 with the parties’ Counsel, Ms Firth for the mother and Mr Cameron for the father, appearing from their respective Brisbane chambers by telephone whilst I was sitting in Townsville.  There is significant material, much of which was filed just before the hearing.  Although the mother’s Application included seeking an order on an interim basis for international relocation back to Malta (which is also the ultimate final order the mother seeks) after some discussions with Ms Firth, for the mother, Counsel conveyed her instructions that such an order was not currently pressed on an interims basis today or yesterday.  That was a sensible position to take.

2. Conscious of the absence of any expert evidence (save for a report from a psychologist procured by the Maltese Family Court) I indicated that the Court regarded it as imperative to attempt to gather some expert evidence quickly, and, with the support of both parties, arrangements have been made for the parties, the children and the father’s partner of two years, Ms B, to attend a Child Inclusive Conference with the Family Consultant at 9.00am on 9 October 2019.

3. Allowing for a memorandum to issue, but again reflecting the need for these children to have interim arrangements in place that can last for a period sufficient to allow the substantive proceeding to be resolved, the Court has listed the Application for a further Interim Hearing before me at 9.30am on 17 October 2019.  As a result the orders I make today, within the context of these factors, can only be seen as temporary until more information is available to the Court.  With proper concessions made yesterday, and after some information from the bench, as the transcript will demonstrate, the following orders will be made:

   a)Pursuant to Section 77 of the Family Law Act 1975 (“the Act”) the husband will pay to the wife lump sum maintenance of $2,000 by 9 October 2019.  The father will also be directed to file a Financial Statement before the next hearing;

   b)The children will be placed on the Airport Watch List with the ancillary orders restraining the children from being removed from the Commonwealth of Australia;

   c)An Independent Children’s Lawyer (“ICL”) is to be appointed on the next occasion before the Court.  It is not anticipated that an ICL would have been nominated by Legal Aid Queensland, however, the Court will consider the request jointly made at that time for a family report to be prepared; and

   d)Both parents agreed to sign all such documents as may be required to ensure that the children’s immigration status, whether through the approval of Australian citizenship by consent or otherwise, allows their continued residence in Australia at least until the substantive proceedings are complete.

4. The evidence produced by the father’s expert witness Ms D confirms that the children’s application for citizenship by dissent may be lodged by the father and does not require the mother’s consent.  If applications are lodged properly, Ms D says the children are likely to be granted Australian citizenship by the end of January 2020.  As the children hold subclass 601 ETA visas at present which, whilst granted for 12 months, has a maximum stay condition of three months, the children’s visas expire currently on 6 October 2019, just three days time.  I will order the parents also sign documents supporting the application by the children for subclass 600 visitor visa prior to 6 October, which means either today or tomorrow.  They will be directed to do so by 12 noon tomorrow.  I will require the father to attend to the filing of the applications if not already done so.

5. The evidence of Ms D is that once that application is lodged for the children the children will be granted the bridging visa A that comes into effect once their EDA expires on 6 October 2019, with such bridging visa allowing the children to remain lawfully in Australia during the processing of the subclass 600 visitor visa or, I infer, until the Australian citizenship by dissent is granted.  It follows from these arrangements that the Court is required to decide interim parenting arrangements for the children until at least 17 October 2019.

Interim Hearings generally

1. Interim Hearings in the family law jurisdiction are truncated by nature.  The Court is not in the position generally to make findings about disputed facts of which there are many in this case.  Often that can only be achieved when the parties have been tested in the usual way by cross-examination at trial or when more collateral evidence is available.  Nonetheless, on the evidence, the Court is often and in this case is still required to make a decision about factors which goes to the best interests of a child or children.

2. As the Full Court in Banks & Banks (2015) FLC 93-637 identified when considering the more commonly described principles identified by the Full Court in Goode & Goode (2006) FLC 93-286, in an interim decision like today it is necessary for a court to limit itself to the issues in dispute and only as required give some examination of the relevant section 60CC(3) additional considerations and section 60CC(2) the primary considerations. Although I do not deal with each of those considerations separately, the reasons which follow, and the findings I am able to make, touch on the important aspects of those considerations in my view.

3. Before turning to a discussion of the competing proposals a brief contextual chronology should be recorded.  The husband is 30 years of age and the mother is 29 years of age and the parties became engaged in Malta, the country of their birth, in 2011 when quite young.  After the birth of the two children in 2012 and 2014 in Malta the family, it seems, decided to move to live in Australia, a country of which the father had citizenship by descent.  The necessary visas were applied for which permitted the children and the mother to arrive in Australia around the time of the parents’ marriage in Australia in 2015.

4. There are contentious issues about the move to Australia and the mother’s desire to live in Australia permanently which might become relevant in the substantive proceedings, however, it is not controversial that the parents’ extended family all remain living in Malta, and although the mother did apply for a spouse visa on 3 September 2015 I am a little unclear as to the mother’s current immigration status.

5. Certainly discussed yesterday, and probably by a bridging visa allowing the mother to remain in Australia while the substantive family proceedings are dealt with, it is expected the mother will ensure she can remain in Australia until her relocation application is determined finally and to the extent reasonably necessary the father would be expected to support the continued entitlement of the mother to remain in Australia.  She is, of course, the mother of the children.  In many respects such applications are for the mother to make, but I do not foresee any situation arising that would cause the mother to leave Australia without the children.

6. On 27 April 2016 the mother and children, with the father’s consent, left Australia for a holiday in Malta.  The father says it was meant to be only until around 12 May 2016.  The mother did not return until mid-October 2016, apparently voluntarily.  The circumstances of this extended holiday and return are likely to become relevant.  In any event, what is clear is that the mother, without the consent or prior knowledge of the father, removed the children from Australia on 1 December 2016 and returned to Malta.

7. The Central Agency application for relief under the Hague Convention was filed in Malta, but not until 30 November 2017.  As previously noted, that application was determined on 28 February 2019, with the Court making critical findings, some of which I set out now, from the reasons for judgment which have been translated for this Court’s benefit.  Those findings being essentially:

   a)that the children’s habitual residence is in Australia;

   b)that the father on 1 December 2016 had and still has parental custody of the children, together with the mother;

   c)in the period before the removal of the children the father was exercising that right;

   d)the father did not consent to the removal of the children to Malta;

   e)there is no serious risk that the return of the children would expose them to physical or psychological harm or otherwise place the children in an intolerable situation; and

   f)the father did not acquiesce to the removal of the children to Malta.

8. After the children returned to Australia they were placed in the care of their father who lives in Suburb F, a suburb near Suburb H, whilst the mother has taken up residence with the father’s uncle in Suburb G, the homes being about one hour’s drive apart.

The mother’s position and submissions

1. The mother seeks that the children immediately be returned to her care and although her application seeks no formal orders for the children to spend time or communicate with the father, but rather seeks protection for the mother and the children through section 68B injunctions against the father.  During oral submissions yesterday Ms Firth indicated the mother would agree to the children spending some day time only periods with the father at this stage.  Ms Firth urges a cautious approach be adopted.  The thrust of the mother’s submissions as to why the children should live with her and spend limited time with the father can be summarised as follows:

   a)The mother, since the birth of the children, has been their primary carer and at least for the period from 27 April 2016 to mid-October 2016 (some nearly six months) and 1 December 2016 to 9 July 2019 (31 months) their sole parental carer;

   b)The child Y was only two years of age when the mother left Australia on 1 December 2016 and she is very likely to be distressed, as would X, by not being in the mother’s care;

   c)The mother says that the father is a risk to the children.  She alleges that the father had physically disciplined X with disproportionate force in at least November 2016 and earlier.  She makes further serious allegations about the father using drugs; growing cannabis; causing her to be “doped” by putting illicit substances into her drink; and committing domestic violence upon her often in the presence of the children; and

   d)The father works full-time as a tradesman and as such is not personally available to care for the children.  The mother believes it is likely as a result that the children since 9 July 2019 have been primarily cared for by the father’s partner Ms B, who Counsel for the mother indicated from the Bar Table the mother knows as they went to school together in Malta and Ms B was previously the spouse of the father’s best friend.

The father’s position and submissions

1. The father seeks that the children remain in his care; that he enrol X in the local state school at Suburb F; and that the children spend time with the mother – preferably over weekends when X is not at school.  The thrust of the father’s submissions as to why these orders are in the best interests of the children are summarised as follows:

   a)Since returning to Australia on 9 July 2019 the father has been rebuilding his relationship with the children and to disrupt that process of repair (after such a long time when no physical time occurred) is not in the children’s best interests;

   b)The children are now, he says, settled in his care;

   c)Because he was of the understanding that without at least X’s passport (which appears to be held by the mother) he could not enrol the boy in a local school the child has not attended school.  He wishes to remedy this as soon as possible and from the beginning of the next Queensland school term commencing Tuesday, 8 October 2019;

   d)The father denies the allegations of physical harm to the children alleged by the mother and the other allegations of drug use, drug cultivation and domestic violence towards the mother, including coercive and controlling behaviour.  Mr Cameron, on behalf of the father, points to the lack of any corroborative evidence or any actions of the mother bringing such matters to the attention of authorities when she was in Australia, and he points to some conclusions reached, it seems, by the Maltese court.

   Of course, the test in Hague Convention matters as to serious or grave risk is quite different from what the Court in Australia in a disputed parenting case must consider when determining unacceptable risk.  Nonetheless, at this point in time there is limited, if any, corroborative evidence of the issues raised by the mother and, as I say, denied by the father.

   e)Because he has employees available in his business the father says he is able to work flexibly and, therefore, is and has been available to care for the children, but does acknowledge he has been assisted by Ms B, his partner.  I will expect that when the matter returns to my list on 17 October 2019 that I will have some relevant sworn evidence from Ms B about the role she has been playing in the father’s household to support his care of X and Y; her work commitments and how she says her relationship with the children has developed.  I have ordered that Ms B be entitled to attend the Family Consultant’s conference on 9 October;

   f)The father readily accepted it was appropriate that he support the mother financially within his capacity to pay, and where the mother does not have access to a car to drive at this stage agrees on an interim basis to do all the travel required to facilitate the children’s time with the mother.  Although the mother indicated that she would be prepared to use public transport, I think for the limited time until I make longer interim orders the father doing the travel to and from the uncle’s home is the most appropriate;

   g)The father strongly contends that the actions of the mother, including her extended holiday to mid-October 2016 and her unilateral decision to take the children out of Australia on 1 December 2016, should be seen as clear evidence that the mother does not value or support the children’s relationship with their father.  As a result, he submits placing these children in the control of the mother, even on an interim basis, is likely to create difficulties in him maintaining and nurturing his relationship with the children; and

   h)Mr Cameron for the father acknowledged that the father ultimately resists the mother being able to relocate with the children back to Malta and that ideally he would like, and believes it may be possible, for the children to live in an equal time regime.  Certainly where an hour’s travel distance between the homes now exists anything approximating equal time for school aged X is not reasonably practicable and even, it would seem to me, if in his best interests, it may not be possible to be satisfied it is in the best interests of the much younger child Y because of her care history.

Conclusion

1. I am firmly of the view that the children need to be spending time with the mother immediately.  Although the father says that his inability to negotiate any arrangements with the mother since 9 July 2019 is not as a result of any lack of effort by him, the result is that the children have not spent time with their primary carer for nearly three months.  At this early stage of the matter neither parent should take the view that the decision I make today is an indication I will be bound by such a decision when I make further orders with further evidence on 17 October 2019, by which time I will have a memorandum from the Family Consultant and further evidence from the father’s partner Ms B, and hopefully also some greater clarification about the mother’s visa status (if not the children’s).

2. Although both children apparently attended a school in Malta (as I am told is possible from the age of three years) I do agree with the submissions of Ms Firth that it is likely to be more disruptive for X if he is enrolled in one school for less than two weeks and then is required to change.  As a result I do not believe it is in his best interests to enrol him in either a school suggested by either parent and, therefore, closer to where he may ultimately live, until a longer interim order can be made on 17 October 2019.

3. In saying this I am aware that the child did not spend the whole of the third Queensland school term from July 2019 at school, but considering the matter is back before me there are less than, it seems, nine school days that he will miss on top of that which I think, although not ideal, is better than placing him in a school only to be removed.  I propose that the children shall live with the parents as follows on an interim basis:

   a)until 9.00am Friday, 4 October 2019 with the father;

   b)from 9.00am Friday, 4 October 2019 to 5.00pm Monday, 7 October 2019 with the mother;

   c)from 5.00pm Monday, 7 October 2019 to 9.00am Thursday, 10 October 2019 with the father;

   d)from 9.00am Thursday, 10 October 2019 to 9.00am Sunday, 13 October 2019 with the mother;

   e)from 9.00am Sunday, 13 October 2019 until 9.00am Wednesday, 16 October 2019 with the father; and

   f)from 9.00am Wednesday, 16 October 2019 until further order with the mother.

4. I accept that this number of changeovers and the travel imposed on the children is not sustainable for long and when the Court on 17 October 2019 decides where the children should primarily reside which will, of course, shape where X attends school, that the time that the other parent will have will be in a regime which would not have this number of changeovers.  In the unusual circumstance of this case at this time I am prepared to impose an interim arrangement which allows almost immediate time to occur with the mother and seeks to maintain some stability that might have been created since 9 July 2019 in the father’s home.

5. There is no way that my orders could in any way be deemed to be a status quo situation.  It is much too fluid for that.  I do not pretend that this is an ideal order and certainly this sort of regime is not sustainable.  I will order that the father be responsible to deliver and collect the children from his uncle’s home at Suburb G to facilitate these care arrangements.  In my view it will be an important demonstration to the children that he supports them returning to spend time with their mother by delivering the children.  It will also be an important opportunity for the mother to demonstrate the value she places at least on the father’s care of the children by facilitating their return to the father at the changeover conclusion of time with the mother.

6. I do not for one moment suggest there may not be tears and anxiety expressed by the children in these arrangements, however, I have weighed that likely result against trying to maintain some opportunity for relationships until I have more data and able to make longer term order.  Subject to any submissions that persuade me otherwise, I propose to also order, on a no admissions basis, that:

   a)The parties not physically discipline either child.

   b)The parents be restrained and an injunction issued restraining the parents from discussing these parenting proceedings with or in the presence of the children and making hurtful or denigrating remarks about the other parent, their household or lifestyle, their family or the other parents’ partner, to or in the presence of the children.

7. As I have already indicated, I will make other facilitative orders, as indicated yesterday, in relation to urgent spouse maintenance, the child inclusive conference, the appointment of an independent children’s lawyer, the airport watch list and some directions for the parties too.  For the father file and serve a financial statement by Friday, 11 October and for the parties to exchange by 4.00pm on 15 October and have available to the Court on 17 October their minute of interim orders that they then contend for.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 October 2019.

Associate: 

Date:  8 October 2019