Bamford and Mandes (No.3)

[2018] FCCA 3927

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMFORD & MANDES (No.3) [2018] FCCA 3927

Catchwords:
FAMILY LAW – Interim parenting – where the mother has persistently failed to comply with orders for a child to spend time with her father since the orders were made in 2014 – where the mother has failed to engage with current court proceedings – interim orders made for the child to live with her father.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases Cited:
Mandes & Bamford & Anor [2014] FamCA 190

Applicant: MR BAMFORD

Respondent: MS MANDES

File Number: NCC 1425 of 2012

Judgment of: Judge Terry

Hearing date: 14 March 2018

Date of Last Submission: 14 March 2018

Delivered at: Newcastle

Delivered on: 14 March 2018

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

Solicitors for the Independent Children’s Lawyer: Foat Roberts Lawyers

ORDERS

THE COURT ORDERS ON AN INTERIM BASIS THAT:

1. All existing parenting orders concerning the child [X] born …2011 (“the child”) are discharged.

2. Until further order the child shall live with the father and he shall have sole parental responsibility NOTING THAT the father will need to enrol the child at a school near his home.

3. Pursuant to s67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child [X] born …2011 and to return/deliver the said child to the Applicant and for that purpose 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 said child may be found.

4. The Independent Children’s Lawyer shall serve a copy of these orders on the mother personally.

5. The matter is adjourned to 9.30am on 25 May 2018 for further consideration NOTING THAT if the mother attends court at that time then consideration will be given to orders for the child to spend time with the mother and for any other orders that are needed to enable the matter to progress. If the mother fails to attend on 25 May 2018 the court is likely to make final orders that the child shall live with the father and the father shall have sole parental responsibility for the child and the child shall spend time with the mother as agreed by the father in writing NOTING THAT the father may require the time to be supervised and any decision the father makes about the time the mother spend with the child will be final.

IT IS NOTED that publication of this judgment under the pseudonym Bamford & Mandes (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1425 of 2012

MR BAMFORD

Applicant

And

MS MANDES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have to decide whether to do what the father is urging me to do and make an interim order that his daughter [X], who was born on …2011 and who is now six about to turn seven, commence living with him in Sydney.

3. At the moment [X] is living with her mother on the Region 1. We cannot be sure exactly where they are living but [X] attends Town A Public School so it is reasonable to assume she is living in an area near from that school.

4. Parenting arrangements for [X] were the subject of lengthy litigation in the Family Court which concluded in 2014 after a six-day trial before Austin J[1]. That trial involved serious allegations. The Department was invited to intervene and they did intervene and an Independent Children’s Lawyer was involved in those proceedings.

   [1] Mandes & Bamford & Anor (2014) FamCA 190

5. The orders Austin J made at the end of those proceedings where that the mother have sole parental responsibility for [X] who was then two years and about nine months old and that [X] live with her mother and spend time with her father each alternate weekend from Friday to Sunday and during the school holidays.

6. Austin J made comprehensive findings about the matters in s. 60CC (2) and (3) of the Family Law Act 1975. He did not accept that there was any merit in the father’s allegations that [X] had suffered a series of injuries while in the mother’s care. He also made a finding that the father had assaulted the mother in 2010. The judgment was thorough. It is a good judgment and that was the outcome of the judgment.

7. The problem though is that after those orders were made, the mother frequently failed to comply with the orders for the father to spend time with the child.

8. The father filed numerous contravention applications. He also filed an application for fresh parenting orders and in the end, after considerable pressure from me and resistance by the father, he agreed to withdraw his contravention applications on the basis that I would then order an updated family report so I could have a look at what was happening for [X].

9. Since the matter has been before me there has been endless problems trying to get the mother to engage in the proceedings. She has more often than not failed to attend Court when the matter has been listed before me. I seem to recollect (although I could be wrong because I might be getting it confused with another matter) that the mother attended on one occasion only after I threatened to issue a warrant for her arrest.

10. The mother failed to attend the family report interviews and the family report writer Ms B set out in considerable detail in her report why she believed that the mother did not make any mistake and did not have any excuse for not attending but deliberately avoided attending.

11. On 1 March 2018 after the release of the family report the father filed an application in a case seeking a change of residence. The mother was served on 6 March 2018 and I have an acknowledgment of service filed on 6 March but the mother has failed to respond to the father’s application and she is not here today.

12. The problem with the mother making the child available to spend time with the father has continued in the recent past. The father tells me, and I accept, that he has spent time with the child in the last six months only in the October school holidays and for some periods of time in January 2017. He had the child in his care in middle January and he was able to take her to an interview with Ms B on another day but since January the mother has failed to make the child available.

13. There is no valid reason for this. There is nothing in the material to suggest that since 2010 the father has been accused of any assaults. There is nothing to suggest that he has committed any assaults. Everything in Ms B’s report suggests that he is living a perfectly ordinary life with his current partner and their two young children and is employed and is a productive member of the community.

14. The father lives in Sydney and the mother lives on the Region 1. I do not accept that the mother could possibly make out a case that the father had been stalking and harassing her, in fact the father has very patiently attempted to use the Court system to assist him.

15. Ms B made some comments in her report about the father’s manner of interacting with people. She said as follows:

    His demeanour was considered pleasant, but somewhat defensive. He had a tendency to assert dominance and attempted to manage the flow and direction of the assessment. He appeared unaware of this and expressed surprise when this opinion was raised with him.[2]

    [2][2] Family Report paragraph 54

16. I have experienced the father behaving in that way in Court and it is off-putting for people trying to deal with his matters.

17. Interestingly though, Ms B commented that when she saw the father on the second occasion, his presentation was very different and she found him easy to engage with.

18. In some respects the father has been his own worst enemy in the way he has presented his case, but on the other hand what he has displayed considerable patience in trying to get the legal system to assist him, extraordinary patience really given that the mother has been consistently avoidant of attending Court.

19. However, it is not just that the mother is avoiding the Court proceedings. There are other red flags which cause me to be concerned about whether [X] is appropriately placed with the mother at the moment.

20. In April 2017 the mother was accused of assaulting her sister by spitting in her face and pulling her hair. When the mother was taken to the police station, her handbag was searched and some MDMA was found in her handbag according to the records that Ms B viewed. The mother initially denied that the drug was hers but eventually admitted that it was and she was charged.

21. I do not know the outcome of the charge but there is no doubt from the police records that the drug was found in her handbag and no doubt that she ended up at the police station because of a complaint by her sister about having been assaulted and there does not seem to be any doubt that a 12-month ADVO was put into place for the protection of her sister and that ADVO does not expire until August this year.

22. There are a number concerns about the mother: the assault on her sister and the finding of the drug combined with her refusal to come to Court which could indicate that she is hiding a great deal about her current circumstances, including drug use.

23. [X]’s school reports suggest that she is attending school without missing an undue amount and the school does not seem to be expressing any concern about her and have not made any mandatory reports to the Department but that does not necessarily mean that I should not consider making a change to [X]’s current living arrangements given everything that I have referred to in relation to the mother.

24. To change [X]’s situation on an interim basis is a major thing to do because the father lives in Sydney and the mother lives on the Region 1 and if I order a change of residence [X] will have to live in Sydney and change of schools.

25. The other thing I was going to mention in connection with the mother is that she appears incredibly protective of the maternal grandfather, who is facing extremely serious child sex offence charges.

26. It is impossible to be certain from the material handed up to me exactly what charges the maternal grandfather is up on at the moment but there are references to the maternal grandfather acting as a client with a child in relation to prostitution and producing, disseminating and possessing child abuse material.

27. He was committed for trial on some of those charges some time ago, but there is no doubt, given the content of Ms B’s report, that he has recently been tried in relation to child sex offences. I just do not know exactly what they are at the moment.

28. The mother’s decision to prioritise supporting him in Sydney in relation to those charges over attending the family report interviews with [X] causes me further grave concern. I am also told that the maternal grandfather is now out on bail at the moment which only ratchets up the concern.

29. I am concerned about making a change for [X] which will mean that she will have to change schools, but the mother is refusing to make [X] available to spend time with her father in circumstances where there is nothing in the material to suggest there could possibly be any justification for that, where the mother was charged last year with assaulting her sister and was found to be in possession of a drug and where she is avoiding the Court proceedings.

30. Another issue in relation to the mother’s drug use is that the mother has never engaged in any drug testing.

31. There are too many red flags and although I am concerned about the issue of the change of school, I intend to make an order that [X] live with the father in the interim.

32. If that focuses the mother’s attention on the children’s matter then all to the good, but I am satisfied given the material currently before me that it is appropriate to reconsider the orders that were made in 2014, sound though they were at the time, and make an order that on an interim basis [X] live with the father.

33. I am bolstered in my view that [X] can cope with that by the content of the family report. The father took [X] to the report interviews. She presented as being well‑bonded with the father and having a good relationship with him and I am satisfied that when everything is weighed and balanced, the appropriate interim order is that the child live with the father.

34. I am going to have to make a recovery order in the matter because I cannot have the smallest hope that the mother is going to hand the child over to the father.

35. I regret having to do that because it means that [X] will not have an opportunity to say goodbye to teachers and classmates and I hope that the father will bear that in mind and take her up to her school to say goodbye to her classmates or at least talk to them and to say goodbye to the teacher, so that even if she is suddenly removed, say, tomorrow by the police, she will still have an opportunity to go back to the school and talk to the people there so there is something a bit more natural about her moving to another place.

36. If what I have done focuses the mother’s attention on the gravity of the situation that can only be to [X]’s benefit. If the mother then submits to drug testing, attends Court and provides some explanation for what has been happening for her in the last 12 months that can only be to [X]’s benefit, but I am not in a position unless she does that to make an about her spending time with the child.

37. If the mother attends Court on the next adjourned date then consideration will be given to orders for [X] to spend time with her and for any other orders that are needed to progress the matter.

38. If the mother fails to attend Court then the Court is likely to make final orders that the child live with the father, that the father have sole parental responsibility for her and that the child spend time with the mother as agreed by the father in writing, noting that the father may require the time to be supervised, and that any decision by the father about the time the child spends with him will be final.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     29 January 2019