Beckwith & Shales

[2020] FCCA 3342

FEDERAL CIRCUIT COURT OF AUSTRALIA

Beckwith & Shales [2020] FCCA 3342

File numbers:	AYC 414 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	26 November 2020
Catchwords:	FAMILY LAW ­ interim parenting – where mother has unilaterally relocated interstate with the children – mutual allegations of family violence – recovery order application – mother ordered to return children to Victoria.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	15
Date of last submission:	26 November 2020
Date of hearing:	23 and 26 November 2020
Place:	Albury (via Microsoft Teams)
The Applicant:	In Person
Solicitor for the Respondent:	Ms Richardson of KPW Lawyers

ORDERS

AYC 414 of 2020

BETWEEN:

MS BECKWITH

Applicant

AND:

MR SHALES

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	26 NOVEMBER 2020

THE COURT ORDERS THAT:

1.On or before 4.00pm on Thursday 10 December 2020 the Mother relocate the residence of the children X born in 2007, Y born in 2009 and Z born in 2012 ('the children') to within 50km of Town B, Victoria.

2.The Mother and Father do all acts and things to cause and ensure that the children are enrolled at and attend the schools that they previously attended in Town B, Victoria being Town B Primary School and Town B Middle Years, C Campus.

3.In the event that the Mother fails to relocate the children's residence to Town B, Victoria on or before 4.00pm on Thursday 10 December 2020, the Mother make the children available for collection by the Father at Town D Police Station, Queensland at 12.00pm noon on Sunday 13 December 2020.

4.Upon the Mother relocating within 50km of Town B, Victoria, she forthwith notify the Father by text message that she has done so.

5.In the event that the Mother does not relocate to Town B, Victoria and the Father collects the children in Town D in accordance with order 3 herein, then until further order, the children live with the Father.

6.In the event the Mother relocates to within 50km of Town B, Victoria, the children live with the Mother.

7.In the event the Mother relocates to within 50km of Town B, Victoria, the children spend each alternate weekend with the Father thereafter from the conclusion of school on Friday until the commencement of school on Monday.

8.In the event the Mother relocates to within 50km of Town B and is available over the Christmas holidays, the children will live one week about, with changeovers taking place on a Friday.

9.In the event the Mother is available in the Town B area over Christmas, the children live with the Mother from 12.00pm noon on Christmas Eve until 12.00pm noon on Boxing Day.

10.Until further order, at any changeover that takes place, the Father's partner, Ms E not be present and not travel to Queensland with the Father to collect the children.

11.The orders made on 26 August 2020 in the Magistrates Court of Victoria at Town B are discharged save for orders 6, 7, 8, 9, 10 which are orders 12, 13, 14, 15, 16, herein.

12.The children be at liberty to communicate with each parent at all reasonable times and the parent that has care of the child shall take all reasonable steps to facilitate such communication.

13.The parties are restrained by injunction from:

13.1Consuming, ingesting, using or otherwise being under the influence of any legal or illegal drug or substance during or for twenty-four hours immediately prior to spending time with the children or allowing the children to come into contact with any other person who has done so.

Save that the parties may take any legal medication prescribed to them in strict accordance with that prescription and they may use over the counter medication provided it is also done in strict accordance with the directions for its use.

13.2Consuming alcohol to excess for twenty-four (24) hours prior to and during any time spent with the children and from bringing the children into contact with any other person who has done so.

13.3Allowing the children to be left in the care of or in the presence of any third party where there are reasonable grounds to believe that the third party is under the influence of illicit substances or excessive consumption of alcohol.

13.4Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their family in the presence or hearing of the children or from permitting any other person to do so.

13.5Physically disciplining the children or allowing any other person to do so.

13.6Discussing these proceedings or the children's living arrangements with the children, in the presence of the children, or allowing any other person to do so.

13.7Relocating the children's residence fifty kilometres (50) outside of Town B, Victoria unless agreed between the parties in writing or pursuant to a Court Order.

14.Each party is hereby authorised to obtain from the children's school all notices, letters, school reports and attend any parent/teacher interviews and other events to which parents are invited.

15.The parties notify the other as soon as reasonably practicable in the event of a medical emergency suffered by the children by telephone and if not an emergency, any medical illness, accident, or injury by text message.

16.Each party advise the other within twenty four (24) hours of any change to their telephone number.

Appointment of an Independent Children's Lawyer

17.Pursuant to section 68L(2) of the Family Law Act 1975 (Cth) the children X born in 2007, Y born in 2009 and Z born in 2012 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid or otherwise the Independent Children's Lawyer do file a Notice of Address for Service;

(b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children's Lawyer copies of all relevant documents; and

(c)The Independent Children's Lawyer fulfil the requirements set out in 'Guidelines for the Child's Representative' as published at and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.

Section 11F Child Inclusive Conference

18.Pursuant to section 11F of the Family Law Act 1975, the parties and the children X born in 2007, Y born in 2009 and Z born in 2012 attend upon a family consultant of the Federal Circuit Court of Australia ("the family consultant") for the purposes of a child inclusive conference on 16 February 2021 noting interviews will be conducted by Microsoft Teams videoconference; AND:

(a)the applicant will be interviewed at 9:00am (unless otherwise advised);

(b)the respondent will be interviewed at 10:30am (unless otherwise advised); and

(c)the interview arrangements for the children will be advised by email.

19.The family consultant shall have leave to inspect any subpoenaed documents.

20.There be liberty to apply in the event that the Mother does not relocate the children to Town B, Victoria by 10 December 2020 and does not make the children available at Town D Police Station on 13 December 2020.

21.The matter be adjourned the Albury Circuit sittings of the Federal Circuit Court of Australia on 22 February 2021 at 10.00am for Interim Defended Hearing.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. I find that the Applicant Mother has been the victim of violence at the hand of the Respondent Father.  I find that the children have been exposed to violence by the Father's behaviour.  I find that the children have been exposed to derogatory descriptions of the Father's household in the Mother’s care.  I am concerned about the welfare of these children living with either parent. 

2. I note, most significantly, that the matter was before the Town B Magistrates Court ex parte on 20 August this year.  On 13 July 2020, the Father had obtained an Intervention Order against the Mother.  I find there was good reason for that Intervention Order. 

3. The Town B Magistrates Court acted with significant speed, to list the Mother's ex parte application of 18 August 2020 before the court on 20 August 2020, and an order was made that the child, Y born in 2019 (“Y”), be returned to the Mother's care, the Father having without the Mother's agreement, retained Y.  The matter was adjourned to 26 August 2020, where by order of the Town B Magistrates Court, it ordered the children, X born in 2007 (“X”), Y and Z born in 2012 (“Z”) live with the Mother and that the Father spend alternate weekends from 5.00pm Friday to 5.00pm Sunday and each Monday and Wednesday. 

4. There was also an order that in the event the children were distressed in the Father's care, he would return them to the Mother, and I infer that this was as a result of matters that the Mother would have informed the court.  The changeover was to be school to school, or the F Store. 

5. I note that the Father committed violence on the Mother in September 2018, again in 2019, and again, there is the terrible incident where the Mother attends the Father's home, where the Father kicks the door of the Mother's car in anger.  This was the same day as the Father's partner had sent to the Mother a leering photograph of herself with the Father with the acronym EADC, which is said to mean, "Eat a dick, cunt." 

6. That gives me an insight into the style of communication between the parents.  The other advantage of the modern age of Facebook and textbook communication is that it gives the court an insight into the style of communication between the parties verbally.  It is simply appalling and is appalling the children being exposed to this.  On the other hand, following the orders which were made on the Mother's application on 26 August 2020, the Mother failed to comply with those orders on almost every occasion. 

7. On 17 September 2020 (on the Mother's application made 3 August 2020), the Mother obtained Intervention Orders against the Father and his partner relying on the incidents of, in particular, the previous May 2020.  That Intervention Order application against those two people was heard on 17 September 2020.  The Mother was represented by lawyers on 20 August 2020, 26 August 2020 and 17 September 2020.  The Mother was successful in her application in obtaining an Intervention Order against the Father, and obtained an undertaking by the Father's partner to be restrained from behaviour similar to that contained in the Intervention Order together with liberty to reinstate that application. 

8. Despite having that Intervention Order in her favour for her protection, the Mother, it appears at some time thereafter, whilst not complying with the orders, the Mother had sought that the Father himself comply with the 26 August 2020 Magistrates Court order.  She complained significantly on the occasion when he did not.  This was notwithstanding that she was not complying with the order.  The Mother obtained the assistance of Victoria Police to obtain a travel permit on 13 October 2020 and the assistance of the Centre Against Violence on 12 October 2020.  It is clear either at the time of the intervention order proceedings or shortly thereafter, the Mother had then commenced to contemplate at least, a relocation interstate and a relocation directly contrary to the order of the Magistrates Court. 

9. It is also clear that the Mother knew that she was acting directly contrary to the Magistrates Court order.  It may be that in her state, that she somehow thought that she had the cooperation of the police and Centre Against Violence to obtain a travel permit, that this would somehow trump the existing court order.  Of course, it does not.  I am not making the orders that I have made to punish the Mother or to express condemnation of her acting in contravention or those orders.  I am concerned to balance the risk to these children. 

10. There are risks both ways.  I am very concerned, as was the Department of Health and Human Services (“DHHS”) at the time of the s.67Z report, which I have read to the Mother last Monday, that there was a risk to the children of the Mother being unable to facilitate a relationship between the children and the Father.  But in that context, the Father has committed serious family violence against the Mother in the past, which may impact on her ability to positively facilitate that relationship. 

11. The material that the Mother has adduced to me, which I have tendered in evidence, whilst on the one hand, being a very quaint account of how the Mother feels, also indicates (and I have no reason to doubt the truth of most of what the Mother has said therein) of the traumatic childhood in her family of origin, where she has been subjected to abuse.  The Mother also told me that she has not had therapy or treatment in regard to that abuse.  It is quite possible that the Mother is still suffering the effects of that childhood abuse.  She has probably been reluctant to seek treatment or therapy because, she said, the Father would use that against her.

12. I also note that she says the Father’s behaviour in making the application is motivated solely by child support.  The real issue in this case for me is the balancing of risk.  I am troubled at the reckless nature of the Mother's relocation and her failure to think through the consequences of that.  That causes me to have real concern about the care of the children in the sole environment of the Mother in Queensland, notwithstanding that the children would not be exposed to the risk of family violence from the Father in their current environment.  I am concerned that they are not attending school and I am concerned that they were abruptly removed from their Victorian schools. 

13. I noticed that the s.67Z response refers to the fact that the children have been exposed to significant history of family violence which occurred during their parents' relationship.  Also, according to the Mother, Z and X are not agreeable to having contact with the Father at this time.  It is clear from the milieu of the Mother and the Father that the Mother's approach to the orders were that it was a matter for the older and younger child as to whether they went with the Father and we had the appalling spectacle of children being taken to a changeover point with the children being expected to tell their Father that they did not want to go. 

14. There is a conflict in the evidence as to whether this is as a result of pressure being put onto the children to express this wish in the presence of the Mother or their genuine wish.  I am unable to determine which it is.  However, there is no appeal from the order of the Magistrates Court of 26 August 2020, and indeed, the Mother has sought to enforce that order when the Father breached it.  That carried within it a residual concession that at least on weekends, it is appropriate for the children to live with their Father. 

15. In the event that the Mother does not make the children available, the matter can be re-listed before me for the issue of a recovery order being made.  I note, ironically, the Mother herself sough a recovery order against the Father in regard to Y, ex parte, in her application of 18 August 2020.  Notwithstanding that, I am not prepared to make a recovery order at this point.  That is a brief outline of my reasons.  I otherwise reserve my reasons.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       8 December 2020