Astbury and Ors and Astbury

[2014] FCCA 2751

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASTBURY & ORS & ASTBURY [2014] FCCA 2751

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – sole parental responsibility – where child’s mother recently deceased – where maternal aunt seeks orders that child should live with her – where child’s father seeks orders that child should live with him – child aged 9 years and 9 months – best interests of the child.

PRACTICE AND PROCEDURE – Venue – change of venue – transfer to Brisbane Registry – convenience of the parties considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 67Q, 68L

Federal Circuit Court Rules 2001, r.8.01

Cases cited:
Blackett & Leicester [2014] FCCA 1619
Goode & Goode [2006] FamCA 1346: (2006) 36 Fam LR 422; FLC 93-286

Applicants:

MS ASTBURY

MS KUTLAR

MR RANCE

Respondent: MR ASTBURY

File Number: SYC 5591 of 2014

Judgment of: Judge Scarlett

Hearing date: 27 October 2014

Date of Last Submission: 27 October 2014

Delivered at: Sydney

Delivered on: 30 October 2014

REPRESENTATION

Counsel for the Applicant: Mr O'Brien

Solicitors for the Applicants: Etheringtons Solicitors

Counsel for the Respondent: Mr Gould

Solicitors for the Respondent: Wiltshire Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The Respondent Father is to have sole parental responsibility for the child [X] born [omitted] 2005.

2. The child [X] is to live with the Father.

3. The child [X] is to spend time with the Second and Third Applicants during the school term each alternate weekend from 9:00am on Saturday to 5:00pm on Sunday commencing on Saturday 1 November 2014.

4. For the purposes of Order (3) above changeover between the parties is to take place at the [B] Caltex Service Station at the commencement and the conclusion of the time that the Applicants spend with the child.

5. The parties are to do all acts and things necessary to permit the child [X] to communicate with the Second and Third Applicants by telephone between the hours of 6:30pm and 7:00pm on Tuesday and Thursday of each week and at any other reasonable time that the child requests.

6. The child [X] is to attend the [A] Primary School.

7. The parties are to do all things necessary to ensure that the child [X] attends grief counselling for such time as is necessary.

8. As provided by section 68L of the Family Law Act 1975 the interests of the child [X] born [omitted] 2005 are to be independently represented by a lawyer and Legal Aid Queensland is requested to arrange such representation.

9. Within seven (7) days of the date of this Order the parties must forward to Legal Aid Queensland for the use of the independent children’s lawyer when appointed copies of all Applications, Responses, affidavits and all other relevant documents.

10. The proceedings are transferred to the Brisbane Registry of the Court to be listed before Judge Jarrett at 9:30am on 2 December 2014.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5591 of 2014

MS ASTBURY

MS KUTLAR

MR RANCE

Applicants

And

MR ASTBURY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application about a girl called [X], who was born on [omitted] 2005. She is the daughter of the First Applicant, who is now deceased, and the Respondent.

2. The Second and Third Applicants are the First Applicant’s sister and her husband. The child is currently in the care of the Respondent Father, and has been so since shortly after the Mother died on [omitted] 2014. However, the maternal aunt and her husband seek orders that the Father should return the child to their care. The Father does not agree, and wishes that his daughter should remain living with him.

Background

1. The Applicants’ Counsel and the Respondent’s solicitor have each prepared a chronology. Each of the chronologies contains evidentiary material related to their particular clients’ or client’s case, but the facts are basically agreed between the parties.

2. The Respondent Father was born on [omitted] 1969. The Mother was born on [omitted] 1972. The parties were married on [omitted] 2001.

3. There is one child of the marriage, [X], who was born on [omitted] 2005. [X] is aged 9 years and 9 months.

4. The Mother and Father separated on either 2^nd July or 9^th August 2013. [X] remained living with the Mother.

5. The Mother had become ill in 2001 and had undergone surgery in 2007. Her health deteriorated and she died on [omitted] 2014. Her funeral took place on [omitted].

6. On [date omitted – day after the Mother’s funeral] the Father picked up the child to spend time with her. He drove her to his home.

7. The following day the Father informed the maternal aunt that the child would remain in his care.

8. On [date omitted] the Father enrolled the child at the [A] Primary School.   

Procedural History

1. On 8^th September 2014 the Applicant Wife filed an Application for Property Settlement at the Sydney Registry of the Court. The Application was returnable on 4^th December 2014.

2. The Respondent Husband filed a Notice of Address for Service on 1^st October 2014.

3. The Husband filed a Response and supporting documents on 2^nd October 2014. In his Response he sought both parenting and property orders.

4. The only final parenting order that he sought was:

   That the Husband be excused from particularising the parenting arrangements sough until a Family Report has been produced.

5. The Husband sought an order transferring the proceedings to the Federal Circuit Court at Brisbane.

6. He sought the following interim parenting orders:

   2. That [X] (hereinafter referred to as “[X]”) live with the Mother.

   3. That [X] spends time with the Father for four weekends out of every six weekends, with time to commence from 9:30 am on Saturday until 5:30 pm on Sunday afternoon.

   4. That [X] spend the first half of all school holiday periods with the Father in even numbered years and that [X] spend time with the Father for the second half of all school holiday periods in odd numbered years.

   5. That the changeover point between households be at [omitted] or alternatively the Caltex at [B] if the Mother is able to drive.

   6. That pursuant to s62G of the Family Law Act 1975 a Family Report be prepared in the matter forthwith or pursuant to s11F of the Family Law Act 1975 a s11F Report be prepared in the matter. That the parties equally share the costs associated with the Family Report.

   7.  Any further or other Order that the Court deems meet.

   8. The matter be listed for an interim hearing after the return of the Family Report or s11F Report.

7. The Applicant wife died on [omitted] 2014.

8. On 17^th October 2014, the Applicants’ solicitors filed the following:

   a)an Amended Initiating Application;

   b)an Application in a Case; and

   c)an affidavit sworn by Ms Kutlar on 17^th October 2014.

9. The Application in a Case was returnable on an urgent basis on 20^th October 2014.

10. The Application in a Case sought the following orders:

    1. That [the] Applicant wife’s name be replaced with the [name] Mr K as Executor of the Estate of the late Ms Astbury.

    2. That Ms Kutlar and Mr Rance be added as (a) parties to the proceedings.

    3. That the husband return the child [[X] to] Ms Kutlar and Mr Rance’s care forthwith.

    4. Pending further Order of the Court, the child live with Ms Kutlar and Mr Rance.

    5.  That this Applicant (sic) be listed before the Court forthwith.

    6. That service of this Application on the Respondent Husband be abridged.

    7.  That a Family Report be prepared.

    8. That an Independent Children’s Lawyer be appointed for the child.

    9.  Costs.

11. The Amended Initiating Application, returnable on 4^th December 2014, seeks the same property orders but now seeks final parenting orders, namely:

    1. That the Husband and Ms Kutlar and Mr Rance have equal shared parental responsibility of the child, [X] born [omitted] 2005 (“the child”).

    2. That the child live with Ms Kutlar and Mr Rance.

    3. That the child shall spend time with the husband on the following basis:

    (a)    From 9 am to 4 pm on alternate Saturdays.

    (b)On the child’s birthday by agreement and in default of agreement from 3 pm to 6 pm.

    (c)On the Husband’s birthday on [date omitted] each year by agreement and in default of agreement then the child is to spend time with the Husband from 3 pm to 6 pm.

    (d)As agreed during the school holiday periods and in default of agreement then the Husband shall have contact for the first half of each of the holiday periods beginning at 9 am on the day following the last day of school in the term prior to the relevant school holiday period.

    (e)Any other times as agreed to in writing between the Husband and Ms Kutlar and Mr Rance.

    (f)For the purposes of Order 3(a), 3(b), 3(c), 3(d) and 3€ above, the Husband and Mr Rance are to meet at McDonald’s in [L] to facilitate the changeover of the child.

    4.That the Husband have telephone contact with the child from 7 pm to 7.30 pm every Wednesday night.

12. On 20^th October 2014 the Application in a Case was returned before the Court. Mr O’Brien of Counsel appeared for the Applicant maternal Aunt and her husband. The Respondent’s solicitor attended by telephone. I adjourned the Application to 27^th October 2014 for mention and ordered that:

    a)Ms Kutlar and Mr Rance were added as Applicants.

    b)The Respondent was to file and serve an Amended Response and in affidavit in support by Wednesday 22^nd October.

    c)The Applicants may file and serve a further affidavit by Friday 24^th October 2014.

13. That same day, the Applicants filed affidavits by Mr Rance, Ms T and Ms M.

14. On 22^nd October 2014 the Respondent filed the following:

    a)an Amended Response to Initiating Application;

    b)a Response to the Application in a Case; and

    c)an affidavit of Mr Astbury sworn 22^nd October 2014.

15. The Amended Response seeks the following final parenting orders:

    1. That the Respondent Father have sole parental responsibility for the child [X] (hereinafter referred to as “[X]”), born [omitted] 2005 who is currently 9 years of age;

    2. That [X] live with the Respondent Father on the Gold Coast in Queensland;

    3.  Any other orders as this Honourable Court deems fit; and

    4. The Applicants pay the Respondent Father’s costs of an incidental to this Application.

    Note: The Respondent Father reserves his position in relation to the time that [X] spends with the Applicants until after the return of the Family Report.

16. The Respondent seeks the following interim orders in his Amended Response:

    1.That the proceedings be transferred to the Federal Circuit Court at Brisbane.

    2.That [X] live with the Respondent Father on the Gold Coast in Queensland;

    3.That [X] spend time with Ms Kutlar (hereinafter referred to as “Ms Kutlar”) and Mr Rance (hereinafter referred to as “Mr Rance”) each alternate weekend from 9:00am Saturday to 5:00 pm Sunday;

    4.That changeover for the arrangements referred to in Order 3 occur at the [B] Caltex Service Station;

    5.That [X] be able to communicate with Ms Kutlar and Mr Rance by telephone between 6:30 pm to (sic) 7:00 pm on Tuesday and Thursday each week;

    6.That [X] be able to communicate with the Respondent Father by telephone on Saturday between 6:30 to (sic) 7:00 pm when she is not in his care;

    7.That [X] continue her enrolment at the [A] Primary School;

    8.That [X] continue grief counselling with Ms W to assist her in coming to terms with her Mother’s recent death;

    9.That pursuant to s62G of the Family Law Act 1975 a Family report be prepared in the matter forthwith or pursuant to s11F of the Family Law Act 1975 a s11F Report be prepared in the matter. That the parties equally share the costs associated with the Family Report.

    10.    Any further or other Order that the Court deems meet.

    11.The matter be listed for an interim hearing after the return of the Family Report or s11F Report.

    12.That the Applicants pay the Respondent Father’s costs of and incidental to this Application.

17. In his Response to the Application in a Case the Father states that he agrees with the following orders sought in the Application in a Case:

    Order 7 – That pursuant to Section 62G of the Family Law Act 1975 a Family Report be prepared in the matter forthwith.

    Order 8 – That an Independent Children’s Lawyer be appointed to represent [X].

18. Further, the Father seeks the following orders:

    1. That the Respondent Father have sole parental responsibility for the child [X] (hereinafter referred to as “[X]”), born [omitted] 2005 who is currently 9 years of age;

    2. That [X] live with the Respondent Father on the Gold Coast in Queensland;

    3. That [X] spend time with Ms Kutlar (hereinafter referred to as “Ms Kutlar”) and Mr Rance (hereinafter referred to as “Mr Rance”) each alternate weekend from 9:00am Saturday to 5:00 pm Sunday;

    4.That changeover for the arrangements referred to in Order 3 occur at the [B] Caltex Service Station;

    5.That [X] be able to communicate with Ms Kutlar and Mr Rance by telephone between 6:30 pm to 7:00 pm on Tuesday and Thursday each week;

    6.That [X] be able to communicate with the Respondent Father by telephone on Saturday between 6:30 pm to 7:00 pm when she is not in his care;

    7.That [X] continue her enrolment at the [A] Primary School;

    8.That [X] continue grief counselling with Ms W to assist her in coming to terms with her Mother’s recent death;

    9.       Any further or other Order that the Court deems meet;

    10. That the Applicants pay the Respondent Father’s costs of and incidental to this Application;

    11.That the matter be listed for an interim hearing after the return of the Family Report.

19. On 24^th October 2014 the Applicants filed an Amended Application in a Case, supported by an affidavit of Ms Kutlar.

20. In the Amended Application in a Case, the Applicants seek the following orders:

    1.That Mr Astbury (“the Respondent”) deliver the child, [X] born [omitted] 2005 (“the Child”) to Ms Kutlar and Mr Rance (“the Second and Third Applicants”) forthwith.

    2.That pursuant to section 67Q of the Family Law Act 1975, a recovery order issue authorising and directing the Marshall, all officers of the Australian Federal Police and all Officers of the police forces of all States and Territories of the Commonwealth of Australia to take possession of the Child, and deliver the Child to the care of the Second and Third Applicants forthwith.

    3.That such recovery order lie in the Registry file until 11:00 am, 28 October 2014, at which time the order is to be faxed forthwith to the Australian Federal Police.

    4.Pending further Order of the Court, the Child live with the Second and Third Applicants.

    5.That the Child spend time with the Respondent on each alternate Saturday from 9am to 6pm, and that arrangement to commence 21 days from the date of these orders.

    6.       That changeover occur at McDonalds in [L].

    7.       That a Family Report be prepared as directed by the Court.

    8.That an Independent Children’s Lawyer be appointed to represent the Child.

    9.Such further or other orders as deemed appropriate by the Court.

    10.    Costs.

21. The Application came back before the Court on 27^th October 2014.

Evidence and Submissions

1. The Applicants rely on the Amended Application in a Case filed on 24^th October 2014 and the affidavits of the following deponents:

   a)Ms Kutlar filed 17^th October 2014;

   b)Ms Kutlar filed 24^th October 2014;

   c)Ms Astbury (curiously, described in the Applicants’ Case Outline as “Ms Astbury (the mother)” filed 8^th September 2014;

   d)Ms T filed on 20^th October 2014;

   e)Mr K filed on 20^th October 2014; and

   f)Mr K filed on 24^th October 2014.

2. The Respondent relies on his Response to the Application in a Case and his two affidavits filed:

   a)2^nd October 2014; and

   b)22^nd October 2014.

3. It is the evidence of Ms Kutlar that she is the deceased Mother’s sister and, therefore, the child’s maternal aunt. She is married to Mr Rance, who is also an Applicant. She deposed in her affidavit filed on 17^th October 2014 that she stopped work in or around July 2014 to care for her sister, who had been in and out of hospital since 2012 and had had brain surgery on three separate occasions. After her sister separated from the Husband, she and the child moved into a self-contained apartment at the rear of Ms Kutlar’s home on 9^th August 2013.

4. The Mother was in hospital for two weeks from 19^th July 2014 and agreed that on her discharge she and the child would move into an upstairs part of Ms Kutlar’s home. The mother and child moved into Ms Kutlar’s home on 2^nd August 2014.

5. On 5^th August 2014, Ms Kutlar suggested to her sister that she should take over looking after the child on a day to day basis, as the Mother’s health would not allow her to continue.

6. Ms Kutlar deposed that the Father saw the child on various occasions and would speak to her on the telephone by arrangement with

   
   

   Ms Kutlar or her husband.

7. Importantly, on 24^th June 2014, the Mother wrote a document entitled “Guardianship Request”, a copy of which is annexed to Ms Kutlar’s affidavit. The document states:

   Upon my death, I would like Ms Kutlar, my sister, and her husband, Mr Rance, to be the guardian of my daughter [X].

   
   

   Ms Kutlar is more likely to raise [X] the way I would and is close to [X] already. I would like her education encouraged and to progress in the direction [X] wants to go. She must be able to support herself in her chosen career though.

   I would like laughter, funny stories & play encouraged. She needs to know that mum’s death is not her fault. She needs to be reminded to love herself the way she is and treat people the way she wants to be treated.

8. Whilst it was not argued that this document has any legal effect, it is nevertheless an important piece of evidence which will no doubt be considered at a final hearing.

9. Ms Kutlar also deposed that the child had expressed some reservations about spending time with her father. She is of the view that the child’s emotional wellbeing would be better served by her remaining in the environment where she has been living until recently.

10. Ms Kutlar also deposed that the Mother had arranged for the child to see an educational psychologist in or about early 2013, and the child was diagnosed as having an auditory processing difficulty. It was recommended that she see a speech pathologist.

11. The Mother’s affidavit, sworn on 5^th September 2014, when she was an inpatient at [omitted] Hospital, dealt mainly with property issues, which is hardly surprising in the circumstances. However, paragraph [22] appears to be relevant:

    Whilst I am in hospital, [X] is being cared for by Ms Kutlar and her husband Mr Rance. [X] has contact with the Respondent, with whom she has a good relationship, during the one day of weekends and half school holidays with help from respondent’s family.

12. Ms T is the child’s maternal grandmother. She gives her occupation as retired [omitted]. She deposed that her late daughter built up a “a solid network” of people to help her look after the child after she moved to [L]. She also stated that she had noticed that from about the age of four years the child had had difficulties in following instructions and putting things in sequential order. After consultation with her daughter, Ms T arranged for the child to attend upon a Ms H, whom she described as an education consultant in learning difficulties in the classroom. Ms H found that the child had an auditory processing difficulty.

13. A copy of a report dated 8^th January 2013 is annexed to Ms T’s affidavit.

14. Ms M deposed that she is a retired teacher who met the Mother and the Father in around December 2007. Shas provided assistance and support to the family since then. The child has stayed at her home. She deposed that after the Mother died she spoke to the child and the Father on the telephone. The child was shouting and distressed, saying that she wanted to return home and the Father, who said:

    “I’ve already made up my mind. If I return her[1]now and wait three months, I’ll lose her. I’ve arranged for [X] to start school on Wednesday”.[2]

    [1] Meaning the child

    [2] Affidavit of Ms M 18.10.2014 at paragraph [12]

1. Mr K is the Mother’s brother and, therefore, the child’s maternal uncle. He deposed in his affidavit of 18^th October 2014 (filed on 20^th October) that he had spoken to the Father on [date omitted], the day before the Mother died. He stated that the Father had said to him:

   “I plan for [X] to come and live with me and my girlfriend on the Gold Coast. We have searched for schools and we are looking for a house. We will not be doing it straight away.[3]

   [3] Affidavit of Mr K 18.10.2014 at paragraph [8]

2. He deposed that the Father also said to him:

   “My legal advice is that as the father, I can take [X] into my full time care without the direction of the Courts.”[4]

   [4] Ibid

3. The Respondent Father relied on his two affidavits, the first of which was sworn on 30^th September 2014 and filed on 2^nd October. He had sought parenting orders in his Response to the Mother’s Application, which only dealt with property issues.

4. The Father claimed in his affidavit that he had largely been involved in the child’s upbringing since the mother first underwent surgery in or around 2007, however “recently Ms Astbury has stopped me from spending as much time with [X]”.[5]

   [5] Affidavit of Mr Astbury 30.9.2014 at paragraph [14]

5. He deposed that:

   17.[X] enjoys her time in my care and during our time on 14 September 2014, [X] told me that she has been thinking about living with me and starting High School on the Gold Coast.

   18.I would like to spend more time with [X] particularly in circumstances where Ms Astbury has been unwell and able (sic) to care for [X]. I have requested on many occasions the opportunity to spend more time with [X] however Ms Astbury refuses these requests preferring that her sister care for [X] rather than her biological father.[6]

   [6] Ibid at [17]-[18]

6. In his later affidavit, sworn on 22^nd October 2014, the Father deposed that the child was residing with him on a permanent basis in a two-bedroom house where she has her own ensuite. He contacted several primary schools in his local area and chose to enrol the child at [A] state Primary School. He arranged for the child to attend an appointment with a grief counsellor and has explained the situation to the child’s school. The school will offer counselling services through the school counsellor, Ms W.

7. Whilst the Father was aware that the Mother’s funeral was held on [date omitted] 2014:

   Unfortunately, I was not invited and so as not to cause a scene for [X] I did not attend however, I made sure that I was in [L] to support [X] on that day.[7]

   [7] Affidavit of Mr Astbury 22.10.2014 at [7]

8. He made the decision after the Mother’s death that he would take full time care of his daughter.

9. The Father deposed at paragraph [18] of his affidavit:

   At approximately 7.00 am on Monday, 13 October 2014, [X], [Ms L][8] and I were awoken by police who informed us that they received a call from [name omitted][9]and were requested to conduct a welfare check on [X]. I spoke to the police and explained that I am [X]’s father, that Ms Astbury has passed away and that [X] is now living with me. The police apologised to me for the disruption and said they had no concern. This incident was particularly upsetting for [X].[10]

   [8] The father’s partner, Ms L

   [9] Mr K

   [10] Affidavit of Mr Astbury 22.10.2014 at [18]

10. The Father deposed that on 15^th October 2014 the police again arrived at his home to conduct a welfare check on [X]. They spoke to the child privately. Again, the Father deposed that this visit by the police was upsetting for the child.

11. The Father gives a different account of the Mother’s view of her sister’s parenting ability at paragraph [44] of his affidavit:

    I recall having a conversation with Ms Astbury in or around early 2013 when she told me that she was glad Ms Kutlar had not had children as she would be a terrible mother. This comment worried me however Ms Astbury would not elaborate other than she did not agree with Ms Kutlar’s treatment of [X].

12. The Father sets out a detailed reply to the affidavits of Ms Kutlar,

    
    

    Ms M, Mr K, Mr Rance (whose affidavit was not relied on in the Applicants’ case) and Ms T.

13. Mr O’Brien of Counsel, who appeared for the Applicants, submitted that it was in the child’s best interests for her to live in an environment where she has an established long term support network, having lived in [L] since 2006. She has attended school there and has a counsellor. She has lived with her aunt and uncle since 9^th August 2013 until 11^th October, when she went into her father’s care.

14. Mr Gould of Counsel, who appeared for the Father, relied on the decision of Judge Lapthorn in Blackett & Leicester[11], a recent decision which dealt with competing applications for residence between a child’s maternal grandparents and the child’s father where the child’s mother was deceased. In that case, his Honour found that it was in the child’s best interests for him to remain living with his maternal grandparents where he would have a sense of stability pending the final determination of where he should live in the long term.

    [11] [2014] FCCA 1619

The Relevant Law in regard to Parenting Applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various provisions of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child;

   e)Section 65DAA, which requires the court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, insofar as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court in Goode & Goode[12] at [82] requires the Court at first instance to consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

   …in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

   [12] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

2. It is one of the primary considerations in s.60CC(2) that the Court should have regard to the benefit of having a meaningful relationship with both parents. Sadly for this child, her mother is now deceased, and she only has her father.

3. The other primary consideration is the need to protect the child from physical or psychological harm from abuse, neglect or family violence. Subsection 60CC(2A) requires greater weight to be given to the latter consideration.

4. It is clear that the Applicants and the Respondent Father are at odds and that the relationship between them is not close. The very fact that the Father was not invited to the Mother’s funeral is significant, in my view.

5. However, the evidence does not suggest that there is an unacceptable risk to the child when she is in her father’s care, even though Ms Kutlar refers in an affidavit to the child’s comments about her privacy whilst at the father’s home. Certainly, it is difficult to see why the police were twice asked to carry out a welfare check on the child at her father’s home. This appears to be particularly heavy handed.

6. It is also heavy handed for the Applicants to seek a recovery order to lie in office until the day after the matter was heard on 27^th October. A recovery order? When the child is in the care of her father? Where there are no parenting orders in force?

7. There is no evidence of any parenting order that was in force during the Mother’s lifetime. The Mother did not seek any parenting order in her Initiating Application, only property orders. The only reference to parenting issues in the Mother’s supporting affidavit spoke of the Father and the child having a good relationship. It was the Father who raised parenting issues in his original Response.

8. It may be argued that the Father’s actions were high-handed in taking the child into his care and making a unilateral decision to retain her in his care without discussing the matter with the maternal aunt and her husband. This may be explained by the fact that the relationship between them was obviously strained. However, it is hard to criticise a father for wanting to look after his child after her mother has died, on the evidence before the Court.

9. It is the Applicants’ case that the child has said repeatedly that she wants to go back and live with them, rather than live with her father. The child’s views should be considered, subject to weight, which is why the parties are of the view that her interests should be individually represented by a lawyer under the provisions of s.68L of the Act and that a Family Report should be obtained.

10. I propose to make those orders.

Equal shared parental responsibility and s.61DA of the Act

1. The Father already has parental responsibility for the child. It is not appropriate to make an order at this stage for the parties to have equal shared parental responsibility, as they have not shown any capacity to cooperate in matters relating to the child and they are at loggerheads as to where she should live and with whom. The Applicants’ proposals for the child to spend time with her father are very limited, I notice, whilst the Father’s proposals for the child to spend time with the Applicants are much more generous.

Section 65DAA

1. As I do not intend to make an order for the parties to have equal shared parental responsibility, it is not necessary to consider the matters set out in section 65DAA.

Orders that are in the child’s best interests

1. I have considered the matters in the decision in Blackett & Leicester[13], and whilst I consider, with respect, that the principles of law set out by his Honour are correctly stated, I am of the view that this decision can be distinguished on its facts.

   [13] supra

2. In Blackett & Leicester, the child concerned had never lived primarily with his father since the parents separated seven years previously. That is not the case here, where the child’s parents only separated in August last year, on the Applicants’ evidence. Judge Lapthorn considered the benefit to the child in the case before him of remaining living with his grandparents where he would have a sense of stability pending the final determination of where he would live.

3. In this case, however, the child is already with her father, even if the father’s method of retaining the child in his care may be open to criticism. To change that position at this stage would only lead to more instability prior to the final determination, in my view.

4. I also have some doubt of the amount of time that the child would be permitted to spend with her father, given the Applicants’ apparent antipathy towards him.

5. I propose to order, until further order, that:

   a)The Father will have sole parental responsibility for the child;

   b)She will live with him and spend time with the Applicants on alternate weekends during the school term and speak to them on the telephone;

   c)she is to continue to attend [A] Primary School;

   d)The parties will ensure that she attends grief counselling as necessary; and

   e)Her interests are to be independently represented by a lawyer.

The Venue of the Proceedings

1. The Father seeks an order that the proceedings be transferred to the Brisbane Registry of the Court.

2. Rule 8.01 requires the Court to have regard to:

   a)the convenience of the parties;

   b)the limiting of expense and the cost of the proceeding;

   c)whether the matter has been listed for final hearing; and

   d)any other relevant matter.

3. The Father lives on the Gold Coast with the child and the Applicants live in [L], on the North Coast of New South Wales. The nearest registries of the Court are at Brisbane and Lismore. The Father’s solicitors are based in Bundall, a suburb of the Gold Coast.

4. Interviews for a Child Dispute Conference or a Family Report would, it seems, more conveniently take place in Brisbane or at the Lismore Registry. It would be more convenient for the parties if the Independent Children’s Lawyer were to be a solicitor based in Northern New South Wales or Southern Queensland.

5. By comparison, the Applicants’ solicitors are based in North Sydney.

6. It would reduce the cost and expense to the parties if the matter were to be heard at the Brisbane Registry of the Court.

7. The matter has not been listed for final hearing.

8. It is also relevant that my Associate made an inquiry of the Brisbane Registry to ascertain when the matter could be conveniently be heard by a Judge. My Associate was informed that there would be time available before his Honour Judge Jarrett on the morning of Tuesday 2 December 2014.

9. I considered the fact that the Court sits on circuit at Lismore. However, it appears to me that, as this matter would be likely to require a good three days of hearing time, it would not be a suitable matter to be heard on circuit and would be more easily accommodated at the Brisbane Registry.

10. It is for those reasons that I propose to transfer the matter to the Brisbane Registry to be listed before Judge Jarrett on 2 December 2014.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  30 October 2014