Bertram and Patch and Anor

[2016] FCCA 2705

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERTRAM & PATCH & ANOR [2016] FCCA 2705

Catchwords:
FAMILY LAW – Interim parenting – recovery order.

Legislation:

Family Law Act 1975

Applicant: MS BERTRAM

First Respondent: MR PATCH

Second Respondent: MS DAWSON

File Number: AYC 406 of 2016

Judgment of: Judge Harland

Hearing date: 28 September 2016

Date of Last Submission: 28 September 2016

Delivered at: Dandenong

Delivered on: 28 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Hill via telephone

Solicitors for the Applicant: Tarella Law

The First Respondent:

The Second Respondent:

In person

No appearance

ORDERS

1. The proceeding is adjourned for Interim Contested Hearing in the Albury Registry of the Federal Circuit Court of Australia in the week commencing 28 November 2016 at 10.00am.

2. The First Respondent make, file and serve a Response and Affidavit in support on or before 7 November 2016.

3. The child X born (omitted) 2011 (“X”) be returned to the applicant by 2.00pm on 30 September 2016 with handover to take place at (omitted).

4. The parties sign all enrolment forms for X to attend preschool in 2016 and primary school in 2017 in (omitted) as soon as practicable.

5. In the event that the father neglects or refuses to sign the enrolment forms within 48 hours of request the applicant be permitted to enroll X in the schools referred to at order 7 herein without the consent of the father.

6. The applicant is to provide the father with details of X’s school enrolment as soon as practicable.

UNTIL FURTHER ORDER

1. The child Y born (omitted) 2016 (“Y”) and X live with the applicant.

2. The children Y and X spend time with the father as agreed.

3. The father be at liberty to telephone X between 7.00pm and 7.30pm every day.

NOTING

1. 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 and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

AYC 406 of 2016

MS BERTRAM

Applicant

And

MR PATCH

First Respondent

MS DAWSON

Second Respondent

REASONS FOR JUDGMENT

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 an urgent application with respect to X born on (omitted) 2011 (“X”) and is five years old.  The application is brought by X’s stepmother.  The first respondent is X’s father.  The second respondent is X’s biological mother.  At this stage the second respondent has not been served, because her address is unknown.  She has not been involved with X for some time. 

3. The history of this matter set out in the stepmother’s affidavit is that the parties were in a relationship starting in 2011 when she was 16 and when the father was 20 and that during the relationship they have moved around and lived in several locations.  The stepmother says that since February 2016 she has been living in (omitted) with her mother and sister and X has been living in her household until 5 September 2016 with the father spending time with X.  The parties have a daughter together, Y born (omitted) 2016 (“Y”), who is five months old. 

4. It is apparent from the evidence and in this regard in particular I refer to the series of text messages that are annexed to the stepmother’s affidavit that the father was agreeable to X living in the stepmother’s home.  He was not living in (omitted) but had made arrangements to see X.  He had spent some much shorter periods with Y, which is not surprising, given Y’s age.  It’s also clear that when X was spending time with the father over the Father’s Day weekend the father made the decision not to return X to the stepmother’s care and to move with X to (omitted). 

5. In the text messages the father refers to X saying things to him which caused him concern, where he says the mother had been saying inappropriate things to her.  That seems to have precipitated his actions in removing her from the stepmother’s care in (omitted).  It is not entirely clear what X said, though it seems to be, from what the father is suggesting, that it was in relation to some adult issues.  What is not known is whether or not X overheard something, whether or not she has misunderstood something or whether or not the step-mother has said something inappropriate to her. 

6. It appears that the father’s actions have been a fairly extreme one, given the fact that X had been staying in that household for some time.  His move was without consultation and without warning.  I have accepted a statutory declaration from the father, given his difficulties in filing material at short notice. This is not a criticism of him.  It is clear from his affidavit that what he prioritises is the biological relationship that X has with him.  It has been well established, going back many years, that biological parents are not in a position of privilege with respect to parenting issues under the Family Law Act 1975 (Cth). The stepmother has had a significant parenting role, as has the father, with X. X also has a young sibling, who she has been separated from.

7. The step mother’s evidence is that the father has not made any arrangements for her to spend time with X since he removed her and that phone calls have only happened since I ordered them on 20 September, and she says that those calls have been cut short, and the father said that some of the calls have been cut short because X was to have dinner and another time his phone had died and he had not realised it. 

8. The father says that X is well settled and he has enrolled her in preschool three days a week.  One of the issues that the stepmother had raised was her attempts to have X enrolled in preschool and the father’s non-co-operation with that. She also had concerns about the family moving around and X not having had much of a chance to get into a routine in preparation for school and socialising with other children.  It is of some significance that the father says that he enrolled X in preschool on 20 September.  That is when the matter was in court before me and when these issues were raised.  It cannot reasonably be said that X is in a settled routine in the father’s care when that arrangement has only been put in place for a couple of weeks. 

9. The changes for X in the past couple of weeks have been significant.  She has been removed from the household where she had been living.  She has been removed from her stepmother, her half-sibling and other significant people in her life.  That is not to say that the father and his family are not significant.  But this is a big change, and it is a fair distance, which means that she is not able to have regular contact with her young sibling and those persons.  In my view, it would not be in X’s best interest to leave the arrangements in place as they are currently. 

10. The father sought an adjournment today to have more time to put on material.  I had adjourned the matter from 20 September 2016 to today to give the father an opportunity to seek legal advice and put on material.  I acknowledge that that was only a seven-day period, but given the nature of the issues raised and given the recency of the change, in my view it was important to bring the matter back to Court.  I acknowledge that the father has had a very limited opportunity to put on material.  He will be given the opportunity to put on further material.  The issues can be agitated further. 

11. One of the issues that is of importance at this stage is providing routine and stability for X.  As I have indicated, there can be no doubt that that is what her stable arrangements at least from February this year have been, and it is clear that the father at the very least had acquiesced to that arrangement.  Whether or not these arrangements remain long-term will be an issue for the court to consider after the parties have had an opportunity to put on evidence and there is a family report and a final hearing where evidence is tested.  For the moment I find that it is in X’s best interests that she be returned to (omitted) to live with the stepmother, and I also find that it is important that she be enrolled at a kindergarten or preschool for the remainder of the year in (omitted) as well as enrolled in a primary school for next year.  Whether or not she attends a primary school next year in (omitted) or (omitted) may be agitated. 

12. I will be transferring the matter to the Albury circuit and I will list it in the Albury circuit in the week commencing 4 December. This will be a further opportunity after the father has put on more-detailed material to agitate those issues. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 20 October 2016