Beckwith & Shales (No 2)
[2020] FCCA 3343
•26 NOVEMBER 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Beckwith & Shales (No 2) [2020] FCCA 3343
File number: AYC 414 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 8 December 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) ss 4AB, 60CA, 60CC, 61DA, 65DA, 65M, 65N, 70NAD Cases cited: Goode & Goode (2006) FLC ¶93-286
Beckwith & Shales [2020] FCCA 3342
Morgan & Miles (2007) FLC ¶93-343
Stringer & Nissen (No. 2) (2019) FLC ¶93-922
Number of paragraphs: 81 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 C 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 C 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 (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This matter came before me in the November 2020 Albury Circuit list and was heard on Microsoft Teams. I heard short submissions on Monday 23 November 2020 and considered detailed written evidence/submissions of the Mother as well as further oral submissions on 26 November 2020. I delivered a brief outline of reasons, ex tempore, when I made orders on 26 November 2020 and reserved further and more detailed reasons. These are those reasons.
The Applicant Mother (‘the Mother’) is 37 years old and the Respondent Father (‘the Father’) is 38 years old they have three children: X born in 2007, now 13, Y, born in 2009, now 11 and Z, born in 2012, now 8 (‘the children’).
The parents commenced to live together just before the Mother turned 18 in 2000 and they had an on and off again relationship before finally separating in 2017.
The Mother is dependent upon Centrelink benefits although she was able to access her superannuation in June 2020 and received the sum of $10,000 at that time and she told me that has now all been spent. The Father works for modest wages as a tradesman. Both parties rent accommodation and each says they are without any savings or financial resources.
This matter came before me on Monday, 23 November 2020. The Father had filed a contravention application arising from the Mother relocating the children’s residence to Queensland and filed an application in a case seeking an order that the children live with him and that in the event the Mother did not comply with that order a self-executing recovery order. The Mother had served and provided by email a substantial document purporting to be dated 5 September 2020. This is the date she said she started to draft the document. The Father pressed the application in a case and did not press the contravention application.
On Monday, 23 November 2020 the matter was listed along with 20 or so other matters and I heard submissions on that day. The Monday was the first day of the four-day November 2020 Albury Circuit sittings of the court with approximately 60 cases including nine final hearings and a dozen or so contested interim hearings.
I adjourned the matter to Thursday, 26 November 2020 at 9:00am for further submissions and to attempt to accommodate the Mother’s request for time to obtain a lawyer to represent her. She told me that she had a grant of legal aid but was unable to find a practitioner to represent her.
On Thursday, 26 November 2020 I heard further submissions including the Mother advising me that she was unable to obtain a lawyer in the time available because her existing grant of legal aid was through Victoria Legal Aid and she had been advised that this would not be operative when she had relocated the children’s residence to Queensland.
Following the delivery of the brief outline of reasons and the making of the orders the Mother advised me she intended to appeal. She being a litigant in person, I advised her that an appeal needed to be lodged within 28 days and that an appeal of itself did not operate to stop, or stay, the orders that I had made.
I have endeavoured to deliver these reasons with expedition in an attempt to ensure that the Mothers announced intention to appeal was not delayed or interfered with by my reasons being pending rather than delivered. These reasons should be read together with the settled brief outline of reasons delivered extempore: see Beckwith & Shales [2020] FCCA 3342.
The Father relied upon the following material:
(a)Response filed 26 August 2020 (originally filed in Magistrates Court);
(b)Affidavit filed 26 August 2020 (originally fled in Magistrates Court);
(c)Affidavit filed 17 November 2020; and
(d)Application in a Case filed 17 November 2020.
The Mother relied upon the following material:
(a)Initiating Application filed 18 August 2020 (originally filed in Magistrates Court);
(b)Affidavit filed 18 August 2020 (originally filed in Magistrates Court);
(c)Document marked ‘M1’ emailed to my Associate; and
(d)Document marked ‘M2’ emailed to my Associate.
In addition I relied upon the section 67Z Response from the Department of Health and Human Services (DHHS) dated 22 September 2020 and an email to my Associate dated 25 November 2020.
I permitted the Mother to rely upon a third or further document emailed to my Chambers the night before the further hearing on the Thursday, 26 November 2020, being ‘M2’
I read all of the parties’ material and considered it.
THE RELEVENT LAW
I relied upon and considered all of the Family Law Act 1975 (Cth) (‘the Act’) from section 60CA to section 65DA. In particular I have applied section 60CA, the best interests of the children the paramount consideration and section 60CC(2) and section 60CC(2A). The need to protect the children from physical or psychological harm is to be given greater weight than the benefit to the children of having a meaningful relationship with both of the child’s parents. Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(2) and (2A) of the Act provide that:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I have considered the matters of section 60CC(3) particularly the matter of the effect of change and the attitude to the responsibility of parenthood shown by the parents and family violence and the family violence orders that apply for the protection of both parents and the children as best I can on an urgent interim hearing. I do not have reliable evidence of the wishes of the children but I am certain their main wish would be for an end to the family violence by their parents.
I acknowledge and have endeavoured to follow the pathway helpfully set out at paragraph [82] of Goode & Goode (2006) FLC ¶93-286. I have been assisted by the decision of Justice Boland sitting as the Full Court in Morgan & Miles (2007) FLC ¶93-343 (‘Morgan & Miles’) and Stringer & Nissen (No. 2) (2019) FLC ¶93-922 (‘Stringer & Nissen’).
The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of the parent, with whom the children live predominantly at the time of the hearing of the controversy. I accept that the Act provides for a careful exercise of a structured discretion to determine the appropriate order to be made, (see Morgan & Miles at [74] and Stringer & Nissen at [26]-[27]), and I have done so and because of the time available I am unable to set out in these reasons all of the matters that I have considered and the manner in which I have considered those.
However I find that there is not only a presumption that court orders are to be followed but a positive obligation upon parents to follow them. Section 65M of the Act provides:
General obligations created by parenting order that deals with whom a child lives with
(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to live with.
(2) A person must not, contrary to the order:
(a) remove the child from the care of a person; or
(b) refuse or fail to deliver or return the child to a person; or
(c)interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.
Section 65N of the Act provides for:
General obligations created by parenting order that deals with whom a child spends time with
(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a)hinder or prevent a person and the child from spending time together in accordance with the order; or
(b)interfere with a person and the child benefiting from spending time with each other under the order.
Section 70NAD (a) and (b) provide that:
(a)a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
Family violence is defined as set out in section 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Section 61DA of the Act provides that:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case the presumption of section 61DA does not apply because I find that the parents, the Father and the Mother, and not equally, have engaged in family violence and also that it would be inappropriate in these interim proceedings to apply that presumption.
The Mother describes a history of violence during the relationship including the father punching holes in walls. The matters that seem clear enough for the purposes of an urgent interim hearing include the following.
The parties separated in 2017.
In September 2018 the Father violently assaulted the Mother while the children were present or nearby including causing a nasty injury to her fingers that required stitches. The incident is described at [31] of the Mother’s Affidavit sworn on 17 August 2020. As a consequence the Police made application for an Intervention Order and on 15 October 2018, and a 12 month final order was made against the Father protecting the Mother and the children. In August 2019 as a result of the September 2018 assault the Father was convicted and fined in the Town B Magistrates Court and ordered to undertake a Men’s Behaviour Change Program. The Mother says he has not undertaken that program.
In about January 2019 the parents were attending a wedding when the Father again assaulted the Mother by throwing a mobile phone at her striking her eye and cheek bone.
It appears the Mother moved to Melbourne for some months and returned to the Town B area in late 2019 or early 2020.
On 21 May 2020 there was a violent confrontation when the Mother attended the Father’s home to retrieve the child Y shortly after the Father’s partner, Ms E sent the appalling “eadc” text message referred to later: see the pages towards the end of the Mother’s document/submission marked as ‘M2’. In this ugly incident, all in front of Y, the Father alleges the Mother twice spat at him and the Father kicked the Mother’s car with such force that it dented the door. The Mother and Ms E “started yelling at each other”, the Father grabbed the Mother’s arms, Ms E tried to hit the Mother (according to the Mother) and the Mother struck Ms E making contact with her face.
This May 2020 brawl appears to have underpinned what the Father says was a Police application for an Intervention Order against the Mother for the Father’s protection that was made into a final order against the Mother on 13 July 2020. The Mother says the Father himself applied.
Shortly after the Intervention Order was made against the Mother, on 3 August 2020, the Mother made application herself against the Father for an intervention order based on the 21 May 2020 events including the appalling “eadc” text and photo. This application was not heard until 17 September 2020.
On 11 August 2020, at a time when the parties lived nearby each other, Y set off on his scooter from the Mother’s home and ended up in the Father’s care and was not returned.
On 18 August 2020 the Mother, represented by a solicitor, issued an urgent ex parte application in the Town B Magistrates Court seeking an order that Y be returned to her and also sought a recovery order.
The application was dealt with on 20 August 2020, not ex parte, and by consent it was ordered that Y be returned to the Mother and the proceedings were adjourned to 26 August 2020.
On 26 August 2020 the parties were represented and the following orders were made:
1.That the children X born in 2007; Y born in 2009 and Z born in 2012 ("the children") live with the Mother.
2.That the children spend time with the Father at all times as may be agreed between the parties, but failing agreement, as follows:
2.1Commencing 4 September 2020 and thereafter: Each alternate weekend from 5.00pm Friday until 5.00pm Sunday.
2.2Commencing 31 August 2020 and thereafter: Each week from 5.00pm until 7.00pm Monday and Wednesday.
3.That in the event the children or either of them become distressed in the Father's care and seek to return to the Mother's care, the Father will take all reasonable steps to return the children or either of them to the Mother's care forthwith.
4.That unless otherwise agreed between the parties in writing, changeover shall occur at the children's school if time commences or concludes during or within half an hour of school hours or the F Store at all other times.
5.That the Father and children communicate via telephone or videocall each Friday that the children are not in the Father's care between 6.00pm and 6.30pm and at all other times as agreed between the parties.
6.That 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.
7. That the parties are restrained by injunction from:
7.1Consuming, 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.
7.2Consuming 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.
7.3Allowing the children to be left in the unsupervised 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 or allowing any other person to do so.
7.4Insulting, 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.
7.5Physically disciplining the children or allowing any other person to do so.
7.6Discussing 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.
7.7Relocating 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.
8.That 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.
9.That 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.
10.That each party advise the other within twenty-four (24) hours of any change to their telephone number.
11.That the proceedings be transferred to the Federal Circuit Court of Australia at Albury in the November Circuit commencing 23 November 2020 for Defended Interim Hearing.
12.That pursuant to section 69ZW of the Family Law Act 1975 the Victorian Department of Health and Human Services and Victoria Police provide to the Registry of the Federal Circuit Court at Albury within twenty-eight (28) days documents and information concerning the people referred to in Order 16, specifically in relation to:
12.1 The children in this matter.
12.2 Any incidents of domestic or other violence.
12.3 Criminal history; and
12.4 Alcohol or substance abuse.
13.In relation to Order 15, the names and birthdates of the parties and the children are:
13.1 Ms Beckwith born in 1983.
13.2 Mr Shales born in 1982.
13.3 X born in 2007.
13.4 Y born in 2009.
13.5 Z born in 2012.
14.That leave be granted to the legal representatives of the parties to photocopy all material produced in answer to subpoenas and produced pursuant to and under section 69ZW of the Family Law Act 1975 and the parties are restrained from providing a copy of the documents or disclosing the contents to any other person without an Order of the Court.
15. Any other Order this Honourable Court sees fit.
I note a section 69ZW request was made by the Magistrates Court in these orders but it appears that this was not served on DHHS.
The parties complied with the 28 August 2020 orders in the two days thereafter but that was it. On Monday 31 August 2020 the Mother advised the Father by text message that only Y would “be attending as X and Z have stated they don’t want to come.” There is no evidence of the Mother using parental authority to ensure the orders were complied with. From the evidence it appears the Mother thereafter treated the orders as being subject to what she said were the wishes of the children.
On Monday 2 September 2020 the children are driven to the changeover and car windows are wound down where X and Z are exposed to the scenario of being asked to tell the Father that they do not want to go on the Court ordered time: see the Father’s 16 November 2020 affidavit at [15]-[16] which was not denied or addressed. It appears both parents treated their own opinion of the children’s wishes as overruling the court orders when it suits them. On that Monday 2 September 2020, instead of returning Y that evening the Father kept Y overnight on the basis that he said Y wanted.
It appears thereafter, until 3 November 2020, only Y attended the Court ordered time with the Father and the Father attended each changeover nonetheless.
It appears Father’s Day weekend of Sunday 6 September 2020 was a weekend the children were to be in the Father’s care. Only Y was made available. Despite not making X and Z available for time with the Father from the Friday evening the Mother commenced (or continued) the insulting “muppett” and “fat muppett” descriptions of the Father’s partner over social media together with criticism of him rejecting said to be his daughter in favour of Ms E and her daughter on that Father’s Day. I am concerned at what X and Z were told by the Mother about why their Father did not see them on Father’s Day.
The Father alleges that upon Y’s return to the Mother’s home after the Father’s Day weekend that Y told the Father that the conflict between the Mother and Y was such that the Mother called the Police to assist her discipline Y who was said to have stolen money from the Mother and that the Mother threatened Y that he would be placed in foster care. It is not denied that the Mother called the Police who attended her home regarding Y.
On 17 September 2020 the Mother’s application of Intervention Orders against the Father and Ms E came before the Town B Magistrates Court. The Mother and Father were represented. As set out in the Mother’s M1 document in the annexed letter from her solicitor G Law Firm, a final 12 month Intervention Order was made against the Father and an undertaking in similar terms was made by Ms E. From this time the Mother, like the Father, had the protection of a final Intervention Order.
Notwithstanding seeking the assistance of the law and the Court in the Intervention Order proceedings the Mother did not thereafter provide X or Z for the Court ordered time with the Father.
On 12 October 2020 the Mother obtained a letter of assistance from Centre Against Violence (CAV) in Town H, based on a history of family violence, supporting a COVID-19 interstate travel permit.
On 13 October 2020 the Mother obtained a letter of support from a Detective Leading Senior Constable J (DLSC J), based on “ongoing” family violence supporting a COVID-19 interstate travel permit.
On 3 November 2020, at 5.00am, the Mother moved to Queensland and rented premises there. The children were not enrolled in school but the Mother said they would be for the 2021 year. The move to Queensland was a mere 20 days before the matter, transferred from the Town B Magistrates Court was due to be listed on the first day of the November 2020 Albury Circuit of this Court.
On 23 November 2020 the Mother told me, but I do not accept without CAV and DLSC J being heard or further evidence, that she told CAV and DLSC J of the existence of the 26 August 2020 order. Despite the Mother’s assertion I have no reason to accept that either CAV or DLSC J would contravene section 65N and/or section 70NAD of the Act.
Also on 23 November 2020 the Mother told me that “Child Protection”, had assisted her move to Queensland knowing of the 26 August 2020 orders (as well as CAV and “the Police”). My Associate made inquiries of DHHS and DHHS in the 25 November email advised that did not occur. On 26 November 2020 I raised this with the Mother and she told me, in substance, that she thought CAV was part of “Child Protection” and that is why she had said that Child Protection had assisted her moving to Queensland knowing of the Court order. I do not accept that and find that the Mother was not always reliable in her statements and submissions to me.
On 23 November 2020 the Mother told me that she had to move to Queensland because of the intimidation from the Father’s solicitors which I took to be as well as the history of family violence. Because of what she told me I looked carefully at the letters and communications from the Father’s solicitors that were in evidence.
The Mother was represented on 20 August 2020, 26 August 2020 and 17 September 2020. Soon after she told the Father’s solicitors she was no longer represented. On 22 September 2020, that is a few days after the Mother had obtained the Intervention Order and the undertaking, the Father’s solicitor wrote a letter, and I find in temperate terms, requesting compliance with court orders and enclosing a brochure titled ‘Compliance with Parenting Orders’.
On 25 September 2020 the Father’s solicitors spoke with the Mother by telephone and on the same day in a short email, that I find was temperate in tone and content, asked the Mother, if she:
“…will not be facilitating changeover in accordance with the Orders, we kindly request that you advise the specific reasons as to such a decision as a matter of priority”: see Annexure “-4” of the Father’s Affidavit filed 17 November 2020.
On 3 October 2020 the Mother emailed the Father’s solicitor complaining that the Father had moved residence and seeking the return of Y’s Xbox. No response as to the “specific reasons” for not making the children available was given. I was told that in fact the Father did later move a modest distance away from where the Mother was living but within the 50km’s of Town B as prescribed in the 28 August 2020 orders but I am told had not moved at that time.
The Mother’s M2 document (and the lease document therein showing her Queensland address was not made available to the Father) shows she applied for accommodation in Queensland on 12 October 2020.
On 14 October 2020, the day/s after the Mother has obtained the letter of support from CAV and DLSC J, the Father’s solicitors again emailed the Mother, and I find again in temperate terms complaining that, inter alia:
“We advise that our client continues to attend changeover at the F Store in accordance with the Interim Orders. We note that you continue to fail to attend changeover with the children in accordance with the Orders”: see Annexure “-5” of the Father’s Affidavit filed 17 November 2020.
On 28 October 2020 the Father alleges, and the Mother denies, that the Mother was arrested by the Police regarding inquiries as to breaches by the Mother of the Intervention Order taken out by the Police for the Father’s protection: see paragraph [58] of the Father’s Affidavit filed 17 November 2020.
Because this is an interim hearing and conducted with urgency, I have been unable to reach conclusions about much of the disputed evidence in the case. For example on the occasion in May 2020 when the Father kicked the door of the Mother’s car with such force that it dented it, in the presence of Y, the Father alleges this was a reaction to the Mother twice spitting at him and in the context of the spitting allegation on social media allegations were made that the Mother suffered hepatitis. I cannot find that that was so, nor can I dismiss that the spitting did not occur. I find that there is a risk of the children being exposed to violence and abusive behaviour from both parents. I am unable put a date on much of the appalling communications between the parents.
The capacity of each parent to describe the other or the others partner in vile terms intended to hurt and annoy the other is significant, powerful and appears practised. The Mother has communicated to the Father in terms such as:
“Can’t believe you would say that and I got checked after you slept with Slut guts cos she has had herpes and how b and (the parties eldest child only 13) doesn’t think that’s funny”.
The Mother has described the Father’s circumstances as in a text message to him as:
“I’m there for the kids 100 and when there (sic) with me there’s no drinking or shit canning of u or a bipolar moment of your messages. Ur life hasn’t changed look at it same shit friends same shit boss same shit drinking same shit anger same shit living same shit it’s all about u ur the liar to keep making out ur a great father find another family I don’t deserve these kids you deserve a shit skank with kids that you can be shit father too (sic) Fuk off ur waste of time and I know what (sic) the kids are good kids cos of me not u and u can’t ever take that away from me ur father like son Clearly reject ya kids to suit urself”
(and attaches an emoji of a raised middle finger).
The Father in text to the Mother has described her as:
“nothing to talk about you piece of shit hepatitis ridden cunt funking double standard cunt fuck off trust me”.
The Mother’s material shows a preoccupation with the circumstances of the father’s relationship with Ms E. Ms E has communicated with the Mother in an insensitive and appalling manner: see the photo with the caption “Finally got him back” along with the text message “eadc” attached to the Mother’s M2 document. Apparently “eadc” stands for “eat a dick cunt”.
However there is no evidence that following the Magistrates Court orders and/or the Intervention Order the Mother obtained against the Father (and the undertaking she obtained from Ms E) that the Father (or Ms E) continued to abuse, or communicate to, the Mother in the appalling manner he (and Ms E) had previously.
The Mother continued her criticism of the Father and Ms E following the orders of 26 August 2020. From at least the Father’s Day weekend of 6 September 2020 the Mother took to communicating with the Father and describing the Father and Ms E on social media in the following terms:
“Oh how nice you choose a muppett and her daughter over your own daughter. Apparently its very funny. Happy fathers day to you what a present u just gave urself pushing her away even further”: see Annexure “-9” of the Father’s Affidavit filed 17 November 2020.
This included an image of a Mother and Father muppett and a child or baby muppett (from Sesame Street). It appears that the Mother continued the “muppett” theme thereafter describing the Father as a “doomed idiot” and continued:
“FYI they cant stand the fat muppett ur dreaming… Best of luck as the fatter the muppett keeps getting shes going to eat u if u leave her and cause u drama u know this = should of picked ur kids, changing, soughted ur anger out we never asked for much really”: see Annexure “-9” of the Father’s Affidavit filed 17 November 2020.
This continued in another communication:
“When the added Muppett battle smiles and I’m not sure if it’s cos she’s getting fatter and her face is taking over her Chinese eyes or the fact that she thinks it’s funny that she actually thinks she wins over kids… U would think u would choose seeing ur kids & making beyyer (better) choices to see them grow up.”
The “muppett” theme continued with images of Kermit the Frog and Ms Piggy and references to “a muppett show”.
It appears that before the Magistrates Court orders the Mother had taunted the Father by sending him calendars showing the extent of the months of the “three weeks no kids Mr Shales” in May and June 2020 together with a family photo with the Father’s image crudely scribbled out by a texta pen or similar: see Annexure “-8” of the Father’s Affidavit filed 17 November 2020.
I do not have in evidence all of the communications between the parties and am unable to determine who communicates in the most vile terms and which parent taunts the other the most or in the worst terms. The evidence I have shows appalling communication between the households where the children live and spend time.
The submissions/evidence of the Mother of M1 and M2 show a parent troubled by conflict in the relationship with the Father and by family violence and the burden of childhood abuse. However I cannot find evidence of the Father continuing his appalling behaviour after the 26 August 2020 orders or after the 17 September 2020 Intervention Order. When addressing the Father’s solicitor on 26 November 2020 I challenged the description of the family violence and abuse as “historic”. I pointed out that the insult, threat or verbal abuse once uttered will remain in the victim’s head. So does the impact of violence,
The M1 and M2 material is part affidavit, part submission, and part letter to the Father. It touched me when I read it. It also caused me to have concern for the children’s welfare, alone in the Mother’s care. I am worried as to her mental health and stability and general functioning. I am troubled at her risk taking approach.
The Mother presents as an articulate, strong, capable and forthright women. She was a capable stock car (racing car) driver competing against her all comers including the Father. This is not a hobby for the faint hearted.
In the section 67Z Response from DHHS it is clear that inquiries were made of the children’s school. The section 67Z Response did not raise concerns as to the immediate welfare of the children in either parents care, but the scourge of family violence hovers over this family.
I am concerned at the depiction in each house hold of the members of the other. I am concerned that the Mother does not support the Father’s relationship with the children.
I am concerned at the difficulty the Mother will have in moving back to Town B. I am concerned that each parent places the burden on the children, in the midst of this chaotic and high conflict situation, of deciding when court orders will or will not be complied with.
I am concerned that since separation the children have not lived for any extended time in the Father’s care. I also take into account but can only give limited weight to the Mother’s case that the children now live with her in Queensland, without the trouble to her of time with the Father, albeit without her complying with Court Orders.
I am also guided by Morgan & Miles at [55]:
“It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time spent with the other parent, be inappropriately fettered by a move which has already occurred.”
I also take into account that in the short, medium and long term these children’s interests, caught in the middle as they are, are best advanced by both parents abiding by family violence orders and Family Law Act orders and orders structured to minimise contact between the parents. Further self help by either parent will be a continued disaster for these children. The only faint good development is the lack of evidence of violence by the Father at changeover since the 17 September 2020 Invention Order against the Father was put in place.
I find that the impugned letters of the Father’s solicitors were not intimidating (one of the claimed basis for the hasty move to Queensland), and that there is no evidence of breach of the 17 September 2020 Intervention Order by the Father, and that another change of school is not in the children’s interest and that the Mother chose to hastily relocate when this Court was about to deal with the living arrangements of this family. The move was only weeks away from the November 2020 Albury Circuit.
CONCLUSION
On balance taking all of the evidence and the law into account I find that the best interests of the children are best promoted by their residence, for the time being on an interim basis pending a section 11F child inclusive conference and the assistance of an Independent Children’s Lawyer at a further hearing, being in or near Town B. If the Mother does not or cannot find accommodation in Town B, then until further order the children will live with the Father until the Mother can accommodate the children in the Town B area or until further order.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 8 December 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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Procedural Fairness
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Costs
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Appeal
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