Bancroft and Willard

[2017] FCCA 3252

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANCROFT & WILLARD [2017] FCCA 3252

Catchwords:
FAMILY LAW – Parenting – interim hearing –orders made for the mother to return the child to the father in (town omitted).

Legislation:

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

Applicant: MS BANCROFT

Respondent: MR WILLARD

File Number: DNC 337 of 2017

Judgment of: Judge Young

Hearing date: 7 November 2017

Date of Last Submission: 7 November 2017

Delivered at: Darwin

Delivered on: 7 November 2017

REPRESENTATION

Counsel for the Applicant: Ms Srinivas

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the Respondent: Mr Burton

Solicitors for the Respondent: Burton-NT Legal

ORDERS

1. That the mother is to deliver the child [X] born (omitted) 2006 to the father at place and time nominated by the father in Darwin.

2. That the children [X] born (omitted) 2006, [Y] born (omitted) 2008 and [Z] born (omitted) 2010 live with the father.

3. That the children spend time with the mother each half of the school holidays beginning with the first half of the December 2017 / January 2018 and the second half of the next school holiday.

4. That the cost of travel be borne equally between the parties.

5. That the father is to forthwith consult with Dr L and follow any advice or treatment plan in relation to the child [X]’s obesity given by him or any other health professional.

6. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship [X] born (omitted) 2006, [Y] born (omitted) 2008 and [Z] born (omitted) 2010 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 January 2018 NOTING that the father and children are required to travel to Darwin for the family report interviews.

7. That the family report to deal with the following matters:

   (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

8. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

9. That the parties are to telephone the Case Coordinator Children Dispute Services on 08 (omitted) fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

10. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

11. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 11 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 8 January 2018 as follows:

   (a)setting out short reasons for the inclusion of each set of  documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter is listed for trial on 12 and 13 April 2018 at 10.00am (allowing 2 days).

5. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

6. That on or before 28 days prior to trial the applicant pay the setting down fee and the respondent pay such further daily hearing fee as required pursuant to the Family Law (Fees) Regulation 2012.

7. That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

8. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

9. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

10. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

11. That the father’s Application in a Case filed on 23 October 2017 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 337 of 2017

MS BANCROFT

Applicant

And

MR WILLARD

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They 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. This is a parenting matter concerning three children:  [X], who is 10, [Y], who is nine, and [Z], who is seven.  [X] is not the biological child of the father in this case.  The parties separated in, it seems agreed, around October 2011 and the children thereafter lived with the father.  There are allegations by the mother that there was much family violence and she did not feel in a position where she could assert her desire to have the children live with her.  The mother also has two other children:  [C], who is four and apparently lives with the mother’s sister and [D], who is almost two, who lives with the mother.  The father of [D] is not involved in these proceedings.

3. The parties began living together again in the same house in late 2015 or early 2016 according to the mother.  The circumstances of deciding to live again in the same house are a little bit unclear.  It is not said by either of them that they resumed a relationship but I think the evidence is rather unclear about that.

4. It seems the father was living then, or at some point, with his present partner Ms H who I am told is a (occupation omitted).  She moved out of that house at some point and apparently the mother continued living there. As I say, the circumstances surrounding these arrangements are very unclear to me.

5. The proceeding commenced after these parties stopped – I will not use the word separation, but stopped living together in the one house in about March 2017.  It seems that there was further family violence between these parties.  It is clear from their affidavit material that there was continuing family violence, although they each contest who was responsible for it.  As I say, the general situation is extremely unclear.  It seems the mother’s present partner, Mr I, may have been on the scene around about that time.

6. There were, I am told, applications in the Local Court for domestic violence orders by the mother, and I am not sure precisely what orders were made, but I understand that consent orders were made without hearing.  Soon after, the father unilaterally, according to the mother, relocated to (town omitted), which is about 1000 kilometres – that might be an exaggeration, but some hundreds of kilometres (omitted) of Darwin, and took up a job with the (employer omitted) as a (occupation omitted).  He took the children.

7. He said that the mother had agreed to his relocation.  The mother denies that, and indeed there is an affidavit annexing a letter from the domestic violence legal service who acted for the mother at the time saying that they were not aware in those proceedings of the father providing any advice that he was relocating.  While I cannot make any finding about the relocation and the precise circumstances in this interim hearing, I suspect it was a unilateral relocation, and it was a unilateral relocation in part as a response to what was clearly a turbulent situation in Darwin between the mother and the father, that turbulence involving allegations of family violence and domestic violence orders.

8. The mother came into this Court in July 2017, I think after the father’s relocation in about June or perhaps May, seeking a recovery order.  The matter came on before me and among the orders made was an order that the children were to spend time with the mother as agreed, but in default during the entirety of the term 3 school holiday period – that is, from the end of September, basically – I think the school holidays then would probably be two weeks – and the father was to deliver the children to the mother in Darwin with him paying all the cost of travel.

9. On 19 September the father filed an application in a case seeking to vary that order on the basis that he could not afford to have the children fly to Darwin, and he did not have a car to get them to Darwin, and generally seeking to be released, as far as I could see, from any requirement from compliance with that order in any way.  That application gives me real concern in this case, not least because while the father said that he could not afford it, he provided no real evidence about his income or his wife’s income – or his present partner; I am not sure if they are married.

10. I am concerned that that application was indicative of an attitude towards the mother and the benefit of the children having a relationship with her which was dismissive.  Again, it is an interim hearing; I cannot make that finding, but it occurs to me that one of the central issues in this case is probably whether or not the father is willing to encourage a relationship between the children and their mother.  The indications so far are not particular encouraging. 

11. The mother’s response to that was to drive to (town omitted), a journey of probably more than a thousand kilometres, or close to, and return.  The children came with her and at the end of the two week holiday period the girls were sent back to (town omitted) and the mother retained [X].  She had taken him to the general practitioner and obtained a referral to a paediatrician based on her concerns about his obesity.  She said that those concerns justified her restraining the child because the child was at serious risk of ill health should he return to the father.

12. The evidence about [X]’s weight is only mildly contentious.  A Dr K who saw [X] at the mother’s instance on a date that is not recorded, but I take it during the holidays, described [X] as “a morbidly obese 10 year old who was suffering from dyslipidaemia” and “a high HSCRP of 2.2”.  I am not sure what a high HSCRP of 2.2 is but I understood from the material that dyslipidaemia is related to having bad cholesterol.  I believe it said that his blood sugars were normal and the letter referred him to another doctor for treatment.

13. There are many pages of documents relating to various tests and readings and recommendations for [X].  I will summarise them:  he is at least obese, if not morbidly obese, and everyone is agreed that medical steps need to be taken or steps need to be taken to ensure that his diet is appropriate, his exercise is appropriate, that there be, for example, a reduction in the sugary drinks he is drinking.  There is also letter from the dentist saying that he has tooth decay and he should stop drinking fizzy drinks.

14. The father annexes to his affidavit a letter dated 30 October 2017, that is, after these issues blew up, where Dr L considers the other reports prepared by other doctors and the pathology reports, in particular, the blood tests taken at the instance of the mother on 5 October, and Dr L says that the readings are essentially normal.  In relation to weight, height and body mass index he concludes that [X] should be described as obese, but not morbidly obese.

15. As Dr L says:

    It is clear that [X]’s weight is a concern, but it is also clear that it is not indicative of a serious imminent health threat.  He does not have diabetes based on his blood test results. 

    In my opinion, [X] needs to have ongoing health follow up, but not of an urgent nature.  He should have a health plan to assist treatment of his psychological challenges, and I believe that progress in this area will assist in managing his weight, particularly through appropriate diet and activity.  In my view, [X]’s weight issues are likely to have genetic and psychological components.  [X] is not taking medication and his physical health is otherwise good.

16. I am not satisfied, on the basis of that or any other material I have seen, that there is any imminent health risk to [X].  Nevertheless, steps need to be taken to ensure that his obesity is appropriately dealt with.  I have some concerns about whether the father will do that.  He said, in his affidavit material, that he is aware of the issue and he has been encouraging [X] to exercise and eat properly.  I hope that is true but I do note that prior to the mother raising the issue in October there is no evidence that the father had sought professional intervention.  That is, medical intervention or intervention from a dietician, for example, to deal with [X]’s obesity.  It is clear that he was seeing a psychologist before then.  So any order I make today will include an order that the father is to consult Dr L and follow his advice in relation to [X]’s treatment for his obesity.

17. I am not satisfied that there is an unacceptable risk in having [X] return to his father and, of course, his two younger siblings, who are living with the father in (town omitted).  I am not satisfied that an order that the three children be returned to Darwin is appropriate at this stage.  The mother has re-partnered in recent months and, as of March of this year, that is, it would appear, immediately after she left the shared home with the father, she re-partnered with a man who has been described as, in her affidavit, only as “Mr I”.  She lives with Mr I in a three-bedroom unit in (location omitted).  She lives there with Mr I and her child, [D], who is two, almost.  Mr I is apparently not the father of [D].

18. [Z] and [Y] have apparently met Mr I but, at most, they have spent two weeks in the same household as him, over the last holidays.  [X] has been living in the same house as Mr I since the beginning of the October holidays, so a little more than a month.  I am not satisfied that it is appropriate to make orders that these three children be returned to Darwin and live in a home with a man who they know little of and they do not have any developed relationship with.  There is no real information about him.  He is not mentioned in the 11F report by the family consultant, so that is one factor that militates against the order that the mother seeks.

19. Another factor that militates against the order, on the same basis, is that notwithstanding what may have been a unilateral relocation, the status quo ante cannot be re-established.  It is clear that, since 2011, the father has been predominantly responsible for the care of these children.  According to the 11F report, the children are reasonably settled in (location omitted) and [X], in particular, while he liked Darwin well enough, says he now has friends in (location omitted) and that suggests that he is ready to go back.

20. The 11F memorandum produced a rather disturbing picture.  While Ms Srinivas is correct to point out that it contains some errors about background, including an assumption that there are existing orders, the family consultant did point out that his observation, which is that [X] is suffering because of the conflict between his parents.  If there was one thing he wanted, it would be to wave a magic wand and stop his parents’ conflict.  There does not seem to be any prospect of that any time soon, unfortunately.

21. There are some other points in the memorandum which are concerning.  I will not go through them all, but the author of the memorandum said that he was particularly worried about [X], and I quote:

    He seemed demotivated and emotionally flat, with little excitement.

    The writer agreed with the mother’s concern about [X]’s obesity, and encouraged the parents to seek the support of a dietician.  I consider that, having regard to the matters in Part VII of the Family Law Act 1975, that the issue raised by the mother, that is to protect [X], in particular, from abuse or neglect, in relation to the father’s failure to seek treatment for [X]’s obesity is, while a concern, overstated.

22. I am also concerned about primary consideration (a) in section 60CC(2): the benefit to the child of having a meaningful relationship with both of the child’s parents. I consider that is a real issue as I am concerned about the father’s attitude, in particular. However, he is employed there. He lives in (town omitted) with his wife, who is also employed there, and I am not satisfied that there is any practicable way that he could be expected to return to Darwin with his wife, who is a (occupation omitted), immediately. The consequence of that would be, if I were to make the orders sought by the mother that, as I said, the children would be moved into a household with the mother, in the three-bedroom unit, and living with a man whom they have no developed relationship with. I am not satisfied that that is in their best interests and, at this stage, I think it is likely to be not in their best interests.

1. I might say something about the father’s partner, Ms H. According to the children, or at least the two older children in the 11F memorandum, they have a good relationship with her. I have regard to each of the matters in section 60CC(3). I should say something about the views of the children. I think, one interpretation of [X]’s view, though he was guarded in the view expressed, was that he was ready to go back to (town omitted). The children appear to have a developed relationship with each of their parents, in addition with Ms H, the father’s partner. Any relationship the children have with Mr I, the mother’s partner, is unknown. He has been introduced into the household very recently.

2. The family consultant, while he was mistaken about whether or not there were any orders in existence, was of the view that the present arrangements, which may well have been the result of a unilateral relocation, are appropriate.  He assumed the children would be coming to Darwin regularly, for holidays.  I am concerned about whether that assumption is appropriate but I am going to make further orders about holiday time, pending trial.  The other matters in subsection (3), I think, are probably relevant, particularly the capacity of the parents to provide for the needs of the children.  It is clear that there is a high level of conflict in this case and, in the case of [X], at least, it is proving very harmful.

3. There has been, I am satisfied, family violence, and it seems likely the children have been exposed to family violence while the parties were living together.  There other domestic violence orders, as I understand, were made by consent, but I am not aware of the precise details of those orders.  In all of the circumstances, I am satisfied that it is in the best interests of the children that they remain living with the father in (town omitted), pending trial, and I am also satisfied that it is in [X]’s best interest that he return to (town omitted) where he will be with a more familiar household and with his sisters.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 20 December 2017