BABCOCK & WADDELL
[2011] FMCAfam 40
•18 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BABCOCK & WADDELL | [2011] FMCAfam 40 |
| FAMILY LAW – Children – parenting orders – interim orders – relocation – best interests of the child – equal shared parental responsibility – equal time – substantial and significant time – whether a recovery order should issue. PRACTICE & PROCEDURE – Application to set aside orders – where respondent had not attended court – explanation for non-attendance – transfer of proceedings – change of venue. |
| Family Law Act 1975(Cth), ss.60CA, 60CC, 61DA, 65DAA, 67Q Restraining Orders Act 1997 (WA) Federal Magistrates Court Rules 2001 rr.8.01, 16.05 |
| Babcock & Waddell [2010] FMCAfam 1280 SZBRB v Minister for Immigration [2004] FMCA 285 SZCPY v Minister for Immigration 2004 FMCA 646 SZIPN v Minister for Immigration & Anor [2006] FMCA 1751 SZITC v Minister for Immigration & Anor [2006] FMCA 424 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 |
| Applicant: | MR BABCOCK |
| Respondent: | MS WADDELL |
| File Number: | SYC6272/2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 January 2011 |
| Date of Last Submission: | 11 January 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Morozov |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Solicitor for the Respondent: | Mr Klimek |
| Solicitors for the Respondent: | Klimek & Co |
ORDERS
Orders (1) to (13) inclusive made on 25 October 2010 are discharged.
ORDERS UNTIL FURTHER ORDER
The mother must return the child [X] born [in] 2006 to Sydney forthwith.
The father and mother are to have equal shared parental responsibility for the child [X].
The mother is restrained from relocating the residence of the child from Sydney.
The parties are restrained from removing the child from the Sydney Metropolitan Area without the written consent of the other party or order of the Court.
The child is to spend time with the father as follows:
(a)
In Week One of each fortnight, from after school or pre-school on Friday or 4.00 pm until the commencement of school or
pre-school on Monday or 9.00 am, and each alternate week thereafter;
(b)
In Week Two of each fortnight, from after school or pre-school on Wednesday until before school or pre-school on Friday or
9.00 am, and each alternate week thereafter;
(c)From 9.00 am on Christmas Eve 2011 until 2.00 pm on Christmas Day 2011;
(d)For a period of three (3) hours on the child’s birthday if that day falls on a day when the child would not otherwise be spending time with the father;
(e)For a period of three (3) hours on the father’s birthday if that day falls on a day when the child would not otherwise be spending time with the father;
(f)From 9.00 am on Father’s Day until the commencement of school or pre-school on the Monday or 9.00 am;
(g)For half of the Autumn, Winter and Spring school holiday periods as agreed between the parties and, failing agreement, for the first half of each school holiday in even numbered years and the second half of each school holiday period in odd numbered years;
(h)For a period of two (2) weeks during the Christmas/January school holiday period commencing on 2 January in each year; and
(i)At such other times as the parties shall agree.
The child is otherwise to live with the mother and, in addition, live with the mother as follows:
(a) from after school or pre-school on the Friday before Mother’s Day until the commencement of school or pre-school on the Monday following;
(b) for a period of three (3) hours on the child’s birthday if that day falls on a day when the child would not otherwise be spending time with the mother;
(c) for a period of three(3) hours on the mother’s birthday if that day falls on a day when the child would not otherwise be spending time with the mother; and
(d) at such other times as the parties shall agree.
For the purpose of facilitating the periods when the child is to live or spend time with each of the parties, the father must collect the child from the mother’s residence at the commencement of the time that the child is to spend time with him and the mother must collect the child from the father’s residence at the conclusion of the time when the child is to spend time with the father PROVIDED THAT where these orders provide that the child is to spend time with the father or live with the mother is to commence after school or pre-school or conclude before school or pre-school then the parties must ensure that this changeover takes place at the child’s school or pre-school.
The parties are to facilitate telephone calls or communications via Skype between the child and the other party at 6.00 pm (Sydney time) on Tuesdays, Thursdays and Saturdays in each week while the child is in their respective care PROVIDED THAT if the child is not available at 6.00 pm (Sydney time) then at such other time as the parties shall agree.
The father is to have responsibility for making decisions about the day to day issues concerning the child’s care welfare and development when the child is in his care as provided by these Orders and the mother is to have responsibility for making decisions about the day to day issues concerning the child’s care welfare and development when the child is in her care as provided by these Orders.
Each party must notify the other as soon as possible and in any event within four (4) hours of any serious injury or illness suffered by the child whilst in that party’s care.
Each party must inform the other of the names and addresses of any medical professionals who may treat the child whilst in their care and authorise them to provide all necessary information to the other party about the health and treatment of the child.
The parties must authorise any school or pre-school attended by the child to provide to each of the parties copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending the school or pre-school.
The parties must do all things to ensure that the child is enrolled in and attends the Montessori [omitted] School at [Sydney suburb omitted] until the completion of kindergarten.
The father must make available to the mother the 1990 Toyota Corolla motor car within twenty-four (24) hours of her arrival in Sydney and permit her to have the exclusive and occupation of the said motor car.
The father must pay the following as soon as they become due and payable:
(a)the rent on the mother’s residence in Sydney; and
(b)the child’s school or pre-school fees and medical health insurance;
the parties are to do all things necessary and sign all documents required and direct the tenant of the property at Property S, Sydney to account directly to the mother.
The parties are restrained from administering to themselves any illicit drug at any time when the child is in their care or for twenty four (24) hours beforehand.
The father is restrained from consuming any alcohol at any time when the child is in his care or for twenty four (24) hours beforehand.
The father is to continue to undertake chain of custody urinalysis testing for illicit drugs and alcohol on three (3) occasions in each week until 31 March 2011 and provide the results to the mother’s solicitor each week.
The father is to undertake hair follicle testing for the presence of illicit drugs during the months of April, July, October and January until January 2012 and provide the results of such testing to the mother’s solicitor with seven (7) days of receiving such result.
The parties are restrained from denigrating each other or using abusive or intimidating language to each other in the presence or hearing of the child [X].
A recovery order is to issue but to lie in office for twenty-one (21) days addressed to the Marshal of the Federal Magistrates Court and to all officers of the Australian Federal Police and to all officers of the police forces of the States and Territories of Australia.
Such persons are authorised and directed to find and recover the child [X] born [in] 2006 and for that purpose with such assistance as they require to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
The child is to be delivered to the father at Property S in the State of New South Wales or to such other address as agreed between the person executing the recovery order and the father.
The recovery order is to remain in force for a period of twelve (12) months.
IT IS NOTED that publication of this judgment under the pseudonym Babcock & Waddell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC6272/2010
| MR BABCOCK |
Applicant
And
| MS WADDELL |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of a little girl called [X] to set aside interim orders made on 25th October 2010 that she return the child from Perth to Sydney forthwith and that she be restrained from relocating the child’s residence from Sydney. She also seeks to change the venue of the proceedings to Perth, by way of transfer to the Family Court of Western Australia.
The father seeks a recovery order.
Background
The father, who is the applicant in the substantive proceedings, was born [in] 1970. The mother was born [in] 1964.
The parties commenced living together in 1995. They separated on 7th August 2010, whilst they were in Perth. There is one child of the relationship, [X], who was born [in] 2006. She is 4 years and seven months old.
The parties had been living in Sydney. On 11th July 2010 the father travelled to Perth to work on a project for a period of eight weeks. The mother and the child travelled to Perth on 29th July to join him.
An altercation took place on 7th August, in which the mother claims that the father assaulted her in the presence of the child. The parties then separated, when the mother left the hotel where they were staying, taking the child with her.
The incident was reported to the Police. An application was made for an Interim Violence Restraining Order under the Restraining Orders Act 1997 (WA). An interim order was made by the Magistrates Court in Perth on 17th August 2010.
On 26th October 2010 the proceedings were resolved by means of an undertaking to the Court by the father. The father undertook not to:
i)Communicate or attempt to communicate with the mother except by SMS to arrange time with [X];
ii)Enter or remain in the premises where the mother lives or works;
iii)Approach within 10 metres of the mother except to facilitate handover of the child for the purpose of spending time with the father;
iv)Behave in a manner that is intimidating or offensive or emotionally abusive towards the mother; or
v)Cause or allow any other person to engage in the conduct of the type referred to;
Except:
vi)when instructing or acting through a legal practitioner;
vii)as provided in a “Family Order” as defined by the Restraining Orders Act 1997;
viii)when participating in family law proceedings; or
ix)for the purpose of attending or participating in any court proceedings.[1]
[1] The full text of the Undertaking is set out in Attachment “B” to the affidavit of Mr Babcock sworn 25.10.2010
The father spent time with the child on 14th and 15th August 2010, but not since then.
The father left Perth and returned to Sydney on 21st August 2010. The mother has remained in Perth with the child, living at her step-father’s residence.
The father commenced proceedings in this Court by means of an application and affidavit in support filed on 1st October 2010.
The application was returnable on 25th October 2010. There was no appearance by or on behalf of the mother on that day, although she had attempted through her solicitor to file a response and an affidavit. Interim orders were made ex parte. Those orders provided that (summarised):
i)The mother forthwith return the child to Sydney;
ii)The parties have equal shared parental responsibility;
iii)The mother was restrained from relocating the child’s residence from Sydney;
iv)The parties were restrained from removing the child from the Sydney metropolitan area without the other party’s consent;
v)The child was to live with the father for various defined times on a regular basis;
vi)The child would otherwise live with the mother;
vii)The father would collect the child from the mother’s residence at the start of his time with her, and the mother would collect the child from the father’s residence when she was due to go back to her mother;
viii)Changeover can take place at preschool or school;
ix)Each party is to have responsibility for making non-major long term decisions about the child when she is in that party’s care;
x)Each party is to notify the other of any serious illness or injury suffered by the child;
xi)Each party is to supply the other with the names and addresses of the child’s treating medical professionals;
xii)The parties are to authorise any childcare centre, preschool or school to provide each other with all necessary written information;
xiii)The child is to attend the Montessori School at [Sydney suburb omitted] until the completion of kindergarten;
xiv)The parties were to attend a child dispute conference with a family consultant;
xv)The application was adjourned to 24th November 2010.[2]
[2] Babcock & Waddell [2010] FMCAfam 1280
The mother did not return to Sydney with the child, but remained living in Perth.
The mother appealed against the decision of 25th October 2010.
On 24th November 2010, an application by the mother for a stay of the order of 25th October was refused.
The mother subsequently withdrew her appeal and elected to apply to set aside the decision of 25th October 2010, as provided by Rule 16.05.
On 22nd December 2010 the father applied for a recovery order.
The applications were heard together on 11th January 2011.
Orders Sought
By her Amended Response, the mother seeks interim or procedural orders (summarised):
i)That the orders made on 25 October 2010 be discharged;
ii)That the mother be at liberty to relocate the child’s primary residence to Perth;
iii)That the child live with the mother;
iv)That the proceedings be transferred to the Family Court of Western Australia;
v)Whilst the father does not reside in Perth:
(a)he may communicate with the child by Skype or telephone at 3.00 pm (Perth time) each day;
(b)he may spend time with the child in Perth for not more than 48 hours at a time for not more than three days per week on 24 hours written notice to the mother;
vi)upon the father commencing appropriate drug counselling and whilst he resides in the Perth Metropolitan Area, he is to spend time with the child:
(a)each week from after school Tuesday to before school Wednesday;
(b)each alternate weekend from after school Friday to 5.00 pm on Sunday;
(c)each intervening week from after school Thursday to before school Friday; and
(d)from 9.00 am on Christmas Eve to 2.00 pm on Christmas Day with care to be suspended for the balance of Christmas Day and Boxing Day;
vii)handover to occur at the mother’s residence if not scheduled to be at the child’s school;
viii)the father submit to supervised urinalysis within 24 hours of a written request from the mother’s solicitors not moire than 4 times in any calendar month and provide the results as soon as practicable;
ix)the father enrol in and attend:
(a)a domestic violence counselling course; and
(b)an age-appropriate parenting course.
x)The father to direct the providers of the above courses to notify the mother of his enrolment, participation and completion; and
xi)The father be restrained by injunction from:
(a)removing the child from the Perth Metropolitan Area without the mother’s written consent;
(b)using any illicit drug during or 24 hours prior to a care period of the child; and
(c)denigrating the mother or any other significant person in the child’s life to her or within her hearing distance.
The mother seeks alternative orders to those set out at (19)(ii), (iv), (v), (vi) and (xi), namely:
a)The mother forthwith return the child to Sydney in the state of New South Wales;
b)The mother forthwith have exclusive use and occupation of:
i)The property situate at Property S, Sydney in the state of New South Wales (“the rental property”); and
ii)The 1990 Toyota Corolla.
c)The father be restrained and an injunction be granted restraining him from removing any items from the rental property, save and except for his personal belongings;
d)The father pay the following as they become due and payable:
i)Rent, utilities, telephone and all other outgoings for the rental property;
ii)The child’s school fees and medical health insurance; and
iii)The strata levies and mortgage of the property situate at Property S, Sydney in the state of New South Wales (“the owned property”).
e)The parties do all things necessary and sign any documents required to authorise and direct the tenant of the owned property to pay rent directly to the mother; and
f)Upon the father commencing appropriate drug counselling and attending until completion whilst following the reasonable advice from his counsellor (and)[3] the father spend time with the child as follows:
i)Each week from after school Tuesday to before school Wednesday;
ii)Each alternate weekend from after school Friday to 5.00 pm on Sunday;
iii)Each intervening week from after school Thursday to before school Friday; and
iv)From 9.00 am Christmas Eve to 2.00 pm on Christmas Day with care to be suspended for the balance of Christmas Day and Boxing Day.
[3] This appears to be a typographical error
The orders sought by the father in his Application in a case are:
i)That leave be granted to list this application on short notice.
ii)A recovery order addressed to the Marshall of the Family Court of Australia[4] and to all officers of the Australian Federal Police force and to all officers of the police forces of all the States and Territories of Australia.
iii)Such persons are authorised and directed to find and recover the child [X], born [in] 2006 and, for that purpose, with such assistance as they require to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found.
iv)The child is to be delivered to the father at Property S, Sydney in the State of New South Wales or to such other address as agreed to between the person executing the recovery order and the father.
v)
The recovery order remains in force for a period of
12 months.
[4] This also appears to be an error
The father also seeks interim orders:
i)Pending further order and subject to paragraph 2, each party facilitates telephone calls or communications via “Skype” with the other party while the child is in their respective care at 6:00 pm (AEST) each day.
ii)In the event the child is not available at 6:00 pm (AEST) or in the event the parties agree in writing beforehand (including via SMS), at such other time as agreed between the parties.
Areas of Agreement
The parties are in agreement that there should be equal shared parental responsibility for the child, notwithstanding their other differences. The father does not seek that the child should live with him to the exclusion of the mother, provided that she returns to reside in Sydney.
Issues in dispute
The mother claims that the father abuses drugs and alcohol and is downplaying the significance of these problems. She also alleges that he has a history of family violence towards her.
The father denies that he has a drug and alcohol problem, although he does not deny that he has used drugs in the past. He has produced urinalysis reports to show that he is not using illicit drugs. He denies the allegations of violence and claims that the mother has been violent to him in the past.
The mother wishes to relocate to Perth, where she claims to have support from her extended family. The father is of the view that the child should reside in Sydney.
Evidence
The mother relied on affidavits by herself and:
a)Mr W;
b)Mr M;
c)Ms T;
d)Ms W; and
e)Ms G.
The father relied on his own affidavits, along with a series of pathology reports from Mr D, relating to urine drug analysis, taken on the following dates:
a)15/10/2010;
b)1/11/2010;
c)5/11/2010;
d)8/11/2010;
e)12/11/2010;
f)15/11/2010;
g)17/11/2010;
h)21/12/2010;
i)22/12/2010;
j)23/12/2010;
k)24/12/2010;
l)4/1/2011; and
m)5/1/2011.
They all showed negative results.
The father also relied on documents subpoenaed from the Perth Montessori School, showing that the child had been accepted for a position in Cycle 1 on 27th August 2010.
The Court also had the benefit of a Family Consultant Memorandum to Court, prepared by a Family Consultant as a result of the parties separate attendances at a Child Dispute Conference on 19th November 2010. The Family Consultant noted that no agreement was reached about with whom the child lived or should spend time with.
The issues remaining in dispute were described as:
· Whether the child lives in Perth or Sydney
· How much time the child spends with each parent
· If the child’s time with the father should be supervised or unsupervised.[5]
[5] Family Consultant Memorandum to court 19.11.2010 at page 1
The Family Consultant noted that the father’s view was that:
·The mother had unilaterally relocated to Perth, removing her from key relationships and a settled and comfortable life.
·The child needed to have both parents living in the same city and to spend substantial time with him.
·There were no similarly paid jobs in Perth to which he would be able to transfer.
·He has been undertaking urinalysis twice a week, he is no longer using recreational drugs and does not intend to recommence.
·He would be willing to consider financially supporting the mother, for example, by paying her rent.
·He had considered moving to Perth but would like an assurance that he would have the care of the child for at least 6 nights per fortnight.
The Family Consultant noted that the mother’s views were:
·She had decided to remain in Perth because her family were able to offer her a rent free place to live, a job in the family company, and an extensive support network.
·If she were in Sydney she would not be able to afford a place to live, she does not have a car, she no longer has the support of the father’s family, and she has a limited number of friends as a number of friendships have fractured as a result of the relationship breakdown.
·Her job prospects in Sydney would be limited, and the kind of job she has in Perth, which is part-time, flexible and child-friendly, would be unlikely to be available.
·The father’s offer of financial support would alleviate some of the mother’s financial stress but not the emotional stress and social isolation.
·She would support the father having the care of the child for up to 6 nights per fortnight provided that he substantially addressed his drug issues.
Both parties agreed to participate in a further Child Dispute Conference if the Court considered it appropriate and the parties were willing to reconsider their respective positions.
The mother deposed in her affidavit affirmed on 6th January 2011[6] that she had concerns about the orders of 25th October 2010 because they did not address the father’s “drug addictions and violence”.[7]Further, the orders do not address the child’s attachment to her, or her desire to remain in Perth, or her proposal that the father relocate to Perth.
[6] Curiously, the first paragraph of the affidavit says “I make oath and affirm that:”
[7] Affidavit of Ms Waddell 6.1.2011 at paragraph [4]
The mother went on to depose:
This is not a decision about who the child is to reside with as I will live wherever [X] is ordered to live. This is about which city, Perth or Sydney, we are ordered to reside in.[8]
[8] Ibid at [8]
The mother deposed that:
a)She did not unilaterally relocate to Perth, or if the Court considers she did it was justified;
b)They were all in Perth when the husband assaulted her and forced her to leave the hotel;
c)She obtained the Violence Restraining Order and remained in Perth of continued abuse and violence;
d)She remained in Perth because the father said he would not support her financially if they separated;
e)She remained in Perth because she needed to rely emotionally on her large and extended family;
f)She remained in Perth because if she returned to Sydney she would have had to communicate with the father, which she did not want to do, and feared that she may have been forced to reconcile with him to survive emotionally and financially;
g)She ensured that [X]’s place remained open at the Montessori [omitted] School in [Sydney suburb omitted] remained open, even though she had enrolled her in the Montessori school in Perth, because she was aware that “it is up to the courts to decide her interim and final residence”.[9]
[9] Ibid at [22]
The mother further set out her position in respect of the Orders of 25th October 2010 by stating:
24. I am entirely cognisant that I am contravening the Orders from 25th October 2010.
25. However, I believe I have no choice but to contravene these orders.
26. We did not appear at the hearing nor were our affidavits available. So through no fault of the court the orders did not address or consider the history of abuse, violence or drugs, nor my financial circumstances….
…29. [Mr Babcock][10] has had the option of applying for contravention or recovery orders since the 25 October 2010 yet, despite many threats, has chosen not to do so. My position has been very clear since 25 October 2010, insofar that I am well prepared to comply with any orders that this court makes once there has been a hearing on the merits. [Mr Babcock] has sought to avoid any hearing on the merits and instead has tried to force compliance with the 25 October 2010 orders knowing full well that these made as a matter of default. Although I am yet to be served with an application seeking a Recovery Order together with the accompanying affidavits, it appears that [Mr Babcock] has now sought a Recovery order despite knowing full well that we are having a hearing pursuant to section 16.05 to revisit the orders made on 25 October 2010.[11]
[10] The father
[11] Ibid at [24]-[26], [29]
The mother goes on to depose that it is in the child’s best interests to live in Perth, stating that relocating to Perth has been a longstanding wish of hers (i.e. the mother). She deposes that:
a)She lives with the child in a large house with the child’s grandfather and his fiancée;
b)They numerous close and extended family in Perth;
c)They live three minutes form the child’s Montessori school and five minutes drive from Perth city centre;
d)They are better off financially in Perth;
e)The father is easily able to relocate to Perth.
The mother deposes, in what is essentially a submission, that it is in [X]’s best interests to remain in Perth until final orders, because:
We will have been in Perth since July 2010 (for over 5 months) and [X] is well settled here. We have a suitable home, regular contact and support from family and friends. I have a child friendly, part time job. [X] has been in school here since August 2010. She is settled there and doing well and has many local friends from school and elsewhere. These items will not be able to be replicated in Sydney. Any move back to Sydney until final orders will be extremely disruptive.[12]
[12] Affidavit of Ms Waddell 6.11.2011 at [39]
The father’s evidence is that there have been incidents during the relationship where the mother has been violent to him, he claims every six to twelve months since 1999.[13]
[13] Affidavit of Mr Babcock 25.10.2010 at [18]
He denies that he has a drug problem, but admits that he has taken recreational drugs. He states that he no longer does. [14]
[14] Ibid at [33]-[35]
The father denies that he has an alcohol problem but is prepared to give undertakings to the Court in relation to his drug use and alcohol consumption.[15]
[15] Ibid at [36]-[37]
In a more recent affidavit, affirmed on 11th January 2011 and filed in Court during the hearing, the father deposed that he does not intend to use illicit drugs and has discontinued drinking alcoholic beverages.[16]
[16] Affidavit of Mr Babcock 11.1.2011 at [2]-[3]
He states that he does not have the capacity to transfer to his employer’s Perth office and annexes a copy of an email from a partner of the firm to that effect.[17]
[17] Affidavit of Mr Babcock 11.1.2011 at [38] and Annexure “D”
The father deposed in his affidavit of 21st December 2010 that he flew to Perth on 14th December 2010 for the purpose of collecting the child, pursuant to the orders of 25th October 2010. He described how he and his brother [name omitted] went to the child’s school on 15th December to collect the child. The school called the mother, who attended the school. He said he had come to collect the child but the mother said:
That’s not going to happen. You’re not going to get [X] without the Federal Police.[18]
[18] Affidavit of Mr Babcock 21.12.2010 at [22]
The mother later went to the child’s classroom and left with the child. He later received a text message from the mother, saying:
Hi [Mr Babcock], I am delighted that u are available and here to se [X]. I am very happy to facilitate u and her together as long as I get a garrentee (sic) that you will not remove her. I’m not prepared to follow that until the Court reads the affidavits (for obvious reasons) or alternatively if we can come to a sensible agreement between ourselves. I repeat: I do not want to take her away from u. I don’t want that myself, for u and again the let u or for [X].[19]
[19] Ibid at [37]
The father deposed that he and his brother later went to the house where the mother was staying but was unable to see the child. He later received a text message fro her saying:
As already communicated by both my solicitor and myself, I am very happy for you to visit with her as much as practicable when u are here, but until the Court reviews its Orders I will not be releasing her to your care. I can’t see why you can’t visit with her while you are here. We wont be at [omitted][20] at 4 pm but u can arrange visits via our solicitor. [Ms Waddell].[21]
[20] Property M, where the mother was living
[21] Ibid at [47]
The father deposed that he went to the child’s school the following day in an attempt to pick her up, but the mother was there and he was unable to see or spending time with [X]. He returned to Sydney.
Submissions
The mother’s solicitor, Mr Klimek, who had flown over from Perth specifically to appear before the Court, submitted that the mother was very aware that she was in breach of the orders of 25th October and seeks a hearing on the merits of the matter. It was unfortunate for the father that there had been a delay. He was used to dealing with the Family Court of Western Australia, where there is no corresponding provision to Rule 16.05 of the Federal Magistrates Court Rules. He agreed that the appropriate action would have been for the mother to have applied under Rule 16.05 rather than seek leave to appeal.
Mr Klimek submitted that there had been no proposal from the father as to how he would financially assist the mother in moving back to Sydney. He referred to the financial Statement filed by the mother to show her lack of means.
Mr Klimek referred to his own affidavit, affirmed on 227th October 2010 as to how it came about that there was no appearance before the Court on 25th October 2010.
Mr Klimek stressed that this was not a “garden variety” relocation; the separation occurred in Perth after what the mother alleged was an unprovoked attack by the father.
It was submitted that the Court must consider the child’s best interests, which include having a meaningful relationship with her father. The mother wants the father to go to Perth. He has the funds to go to Western Australia and the mother has no issue with the father having liberal time with the child there.
Mr Klimek conceded that the parties had had a dysfunctional relationship, with a history of regrettable incidents on both sides. There would be a concern at this stage about contact between the parties.
He submitted that the mother’s greatest concern was her fear of exposure to abuse. She claims that the father has a drug history involving the use of crystal methamphetamine. He also submitted that the father underestimates his use, or abuse, of alcohol.
Further, the child has now been in Perth for five months, although he admitted that this was partly due to “procedural abnormalities”. However, five months was a long time in the life of a four and half year old child.
As to the mother’s unilaterally enrolling the child in the Montessori School in Perth, Mr Klimek submitted that this was done at a time when the parents were considering relocating to Perth.
It was also submitted on behalf of the mother that the father’s attitude to the child and the responsibilities of parenthood, under s.60CC(3)(i) was relevant. The father took two months to do anything about the child. He has been to Perth and not seen her.
Again, he submitted that whilst his client agreed that the parties should have equal shared parental responsibility, equal time or significant time are not practicable if the mother remains living in Perth. These parties cannot co-parent, he submitted, because they cannot be near each other. Shared care is not possible because the parties cannot be around each other at present.
Mr Klimek submitted that, if the mother has to return to Sydney, there would be a need for appropriate financial orders. He also submitted that this case calls for expedition in its hearing.
Ms Morozov, the father’s solicitor, told the Court that [X] is not due to start school until 2010. What she has been attending at the Montessori School is pre-school.
Ms Morozov submitted that these are interim proceedings. The court cannot determine the facts. All of the evidence is subjective.
It was not in issue that the father and mother had lived in Sydney with [X] since her birth. She was enrolled at the Montessori [omitted] School in [Sydney suburb omitted]. The father went to Perth for an eight week project (the mother says two months). There was an incident on 7th August that precipitated the parties’ separation. The mother left the hotel room and got another room. There was an interim Violence Restraining Order issued by the Perth Magistrates Court. The father has not spent any time with the child since 15th August 2010 but has had Skype communication with her.
She submitted that the father did not deny the drug-taking, but now says he is not using illicit drugs and is having regular testing. He has booked himself to continue having testing until 14th February 2011, after which time he will have hair follicle testing.
The father does not seek equal time with the child, but he does seek substantial and significant time with her. The father cannot move to Perth but the mother can move to Sydney. It is reasonably practicable for [X] to return to Sydney.
The mother has an income. She has directed the rental payments for the flat that the parties own and have rented out to her brother’s bank account. She included the outgoings in her Financial Statement, although she was not paying them and only disclosed half the rental. She elected to pay for her solicitor to fly from Perth to Sydney for an interim hearing. As Ms Morozov said, “if the mother is crying poor, it’s of her own making”.
The father has offered to pay the mother’s rent in Sydney. She receives the money from the jointly-owned property. The father will pay the child’s school fees at Montessori [school omitted], where she has been going since the age of three.
He would pay the mother’s rent on her return to
Sydney, but would not vacate the unit in Property S where he is currently living. He would agree to make the Toyota Corolla motor car available to the mother.
The Applicable Law
The first thing to consider is the application to set aside the orders made on 25th October 2010, when there was no appearance by or on behalf of the mother.
Rule 16.05(2) provides, relevantly, that:
The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or…
(c) the order is interlocutory…
This is clearly the case here.
Where a party seeks to set aside an order made in that party’s absence, the Federal Magistrates Court must consider both the circumstances which led to the party’s failure to attend the Court and the merits of the party’s substantive case. If there were no prospects of success then an application should be refused, because it would be futile (see SZBRB v Minister for Immigration[22], SZCPY v Minister for Immigration[23], SZIPN v Minister for Immigration & Anor[24], and SZITC v Minister for Immigration & Anor[25].
[22] [2004] FMCA 285
[23] [2004] FMCA 646
[24] [2006] FMCA 1751
[25] [2007] FMCA 424
The mother seeks parenting orders. The father seeks a recovery order to enforce the orders he obtained on 25th October 2010.
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).
The Court determines what is in a child’s best interests by having regard to the primary considerations set out in s.60CC(2) and the additional considerations set out in s.60CC(3). The Court must also consider, where possible, the extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent (s.60CC(4)), and, where the child’s parents have separated, events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).
I have done so in this case.
The Court must consider the presumption in s.61DA of the Act that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility, and consider whether that presumption should apply in the particular circumstances (see Goode & Goode[26] ).
[26] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 26 Fam LR 422
In this case, it is agreed between the parties that there should be equal shared parental responsibility, and I propose to make that order.
Subsection 65DAA91) states that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the court must:
a)Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)Consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
The father does not seek equal time, and I am not satisfied that it would be reasonably practicable, given the level of hostility between the parties, even if they are residing in the one city.
If the Court does not make an order for the child to spend equal time with each of the parents, the court must consider whether the child spending substantial and significant time with each of the parents would be:
a)in the child’s best interests; and
b)reasonably practicable.[27]
[27] See s.65DAA(2)
I will consider that aspect after I have considered the application to set aside the earlier orders and the matters under s.60CC.
Conclusions
It was always the mother’s intention to file a Response and an affidavit in reply to the father’s application. The fact that the documents were not filed on time is due to administrative difficulties in the office of the mother’s solicitors. Again, it was the intention of the mother’s solicitor to seek to attend Court by telephone but, again, administrative difficulties meant that when the Court attempted to telephone the mother’s solicitor, the call kept going through to voicemail. The circumstances are set out in some detail in the earlier decision of Babcock & Waddell[28] at [2]-[7].
[28] [2010] FMCAfam 1280
The orders were then made, until further order, and the application was adjourned to 24th November 2010 for further mention. By that time, the mother’s response and affidavit had reached the court and the mother had sought leave to appeal against the orders. The application for leave to appeal was returnable before Ainslie-Wallace on 26th November. A stay was sought on 24th November, which was unsuccessful.
However, the mother’s legal advisers had decided to apply to set aside the orders of 25th October, as provided by r.16.05, so the application for leave to appeal was withdrawn.
It has been explained that, because there is no equivalent provision to Rule 16.05 in the Family Law Rules, which apply in the Family Court of Western Australia, the mother sought leave to appeal. The mother deposed that the existence of rule 16.05 was first raised on 24th November[29] and:
I note that there is no similar provision in the Family Law Rules 2004 and consequently, I elected to take this different course as soon as I knew it was available to me.[30]
[29] Although it is not my recollection that I “encouraged” the mother’s legal advisers to apply under that rule
[30] Affidavit of Ms Waddell 6.1.2011 at [28.2]
Attempting to run litigation by “remote control” from the other side of the continent, in a different time zone, and in a Court where the lawyer does not practice, is a dangerous practice, and it led to orders being made in the respondent’s absence and a considerable amount of wasted time. A local solicitor could have appeared for the mother at relatively little expense, even if, as was the case here, that the mother’s solicitor had not managed to file the necessary documentation in time. If nothing else, an adjournment could have been sought.
It is no excuse to say that a party’s lawyers were not aware of the existence of a procedure available in this Court, which is why they sought to appeal against the orders rather than making an application to set the orders aside when the matter came back to Court on 24th November. It is trite to say that lawyers are expected to know the law. A Sydney agent could easily have advised that this procedure was available, and the application could have been heard on 24th November.
It is unfortunate, to say the least, that there have been three Court events undertaken in order to get the mother back to the position that she should have been in on the first return date.
Nevertheless, I am satisfied that, however inept the attempts were, it was always the mother’s intention to defend the application when it was returnable on 25th October. I am satisfied that there is an explanation for the fact that there was no appearance by or on behalf of the mother on 25th October 2010.
As was mentioned earlier, the Court must also consider the merits of the case that the mother sought to make in her Response. The mother’s Response and affidavit in support, affirmed on 21st October 2010, were eventually filed on 1st November 2010. The Response sought orders (inter alia):
a)Permitting the mother to relocate the child’s residence to Perth;
b)That the child live with the mother;
c)that the father be restrained by injunction from attempting to remove the child form the Perth metropolitan area and from using any illicit drug when or 24 hours before the child was in his care; and
d)Transferring the proceedings to the Family Court of Western Australia.
The grounds argued in the supporting affidavit were that:
a)The mother had always been the child’s primary caregiver;
b)The separation on 7th August 2010 arose as a result of a violent act by the father; and
c)The father had an addiction to crystal methamphetamine and was abusing alcohol.
At the very least, it can be said that the mother had an arguable case.
Accordingly, I am satisfied that the orders made on 25th October 2010 in the absence of the mother should be set aside.
The next step to be taken is to consider what orders should now be made.
Clearly, the best interests of the child are the paramount consideration. The mother has argued that, although she admits her contravention of the orders of 25th October 2010, she claims that she had no choice but to do so. I do not accept that argument. The mother chose not to abide by the orders.
In her affidavit sworn or affirmed[31] on 6th January 2011, the mother states:
My position has been very clear since 25 October 2010, insofar that I am well prepared to comply with any orders that this Court makes once there has been a hearing on the merits.[32]
[31] It says both, in alternate places
[32] Affidavit 6.1.2011 at [29]
The Court will not accept the proposition that parties may pick and choose the orders they intend to comply with, or that they will set their own conditions on whether or not they will comply with a particular Court order.
The mother claims that the child is now well settled in Perth after a period of five months and that it would not be in her best interests to return to Sydney whilst the issue of relocation and other parenting orders are decided on a final basis.
In my view, the delay that has ensued is due to the mother’s deliberate refusal to comply with Court Orders. I am not persuaded that a period of five months, in the circumstances where the child was always going to spend some period of time in Perth, has created a situation where it would not be in her best interests to return to Sydney, where she has lived for over four years.
The mother’s actions appear to have prevented the child from spending time with her father for a period of several months, which does not appear to be in her best interests.
Consequently, I intend to make orders that the mother return the child to Sydney. I note that the mother has proposed some alternative orders in her Amended Response, being orders 13 to 18 inclusive, predicted on the possibility that the Court may well make orders that the mother return the child to Sydney. They seem to offer a useful guideline, although I do not propose to adopt them in their entirety.
I am not satisfied that the father should be required to move out of his current residence. However, the father has agreed that he will make the Toyota Corolla motor car available to the mother, as she seeks. That would appear to be a necessary step.
The mother will need some financial assistance if she is to return to Sydney to live in the interim period, and I note that the father has agreed to assist by paying her rent and other outgoings, as well as the child’s school fees.
The parents have always been of the view that [X] should attend a Montessori School, or pre-school in this case, and there is still vacancy available for her at Montessori [school omitted] in [Sydney suburb omitted]. She should go back there.
The Court is not in a position to make findings of fact about issues of family violence or the parties’ alleged drug use or alcohol abuse, but it would appear necessary to protect the child from harm or neglect by making injunctive orders forbidding the use of illicit drugs or alcohol when the child is in the parties’ care.
There should be interim parenting orders that will allow the child to spend a reasonable amount of time with the father, but I am not satisfied that the amount of time should necessarily be substantial as the father would like. The time should be significant and not just nominal.
Whilst the mother’s solicitor has submitted that this case calls for expedition, so do many other cases and the Court does not have the resources to deal with all parenting cases as expeditiously as it would like to do so. This case has already taken up more court time than would normally have been necessary, due to the cumbersome methods with which the mother’s case has been presented.
Interim parenting orders will need to consider significant days, such as birthdays, Mother’s Day, Father’s Day as well as Christmas. The question of handovers needs to be considered, as there is a hostility between the parties, as the Mr Klimek has pointed out.
Noting that the mother has chosen not to comply with parenting orders made earlier, I propose to make a Recovery Order that will lie in office for a period of twenty-one days, to ensure compliance with these orders, which I consider to have been made after an interim hearing where the parties’ claims have been taken into account, even if their evidence has not been tested by cross-examination.
It need hardly be said that the application for a transfer to the Family Court of Western Australia need not be considered, as the child is to be returned to Sydney until the issues can be decided on a final basis.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 18 January 2011
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