BLEEKER & BLEEKER
[2010] FMCAfam 536
•8 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLEEKER & BLEEKER | [2010] FMCAfam 536 |
| FAMILY LAW – Children – Interim parenting orders – where respondent unilaterally relocated the children’s residence to Queensland – allegation of family violence – whether a recovery order appropriate – whether it is appropriate to appoint an Independent Children’s Lawyer. |
| Family Law Act 1975, (Cth) ss.60CC, 68L Domestic and Family Violence Protection Act 1989 (Qld) |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 |
| Applicant: | MR BLEEKER |
| Respondent: | MS BLEEKER |
| File Number: | SYC 2122 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 May 2010 |
| Date of Last Submission: | 10 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Reeve |
| Solicitors for the Applicant: | Marsdens Law Group |
| Solicitor for the Respondent: | Mr Colavitti (by telephone from Brisbane) |
| Solicitors for the Respondent: | Colavitti Lawyers |
ORDERS
The Respondent Mother is to relocate the residence of the Children W born [in] 1996 and J [in] 2000 to an address within the Sydney metropolitan area no later than 27 June 2010.
In the event that the Respondent Mother fails to comply with Order 1 above then a recovery order addressed to the Australian Federal Police is to issue directing them to find and recover the said Children.
The Respondent Mother is to re-enrol the said children W and J at the [C] High School in the State of New South Wales and [A] Primary School, in the State of New South Wales respectively in sufficient time so as to allow them to commence the school term on Monday 19 July 2010.
In the event that the Respondent Mother is unwilling to reside in the Sydney metropolitan area the said Children are to live with the Father until further order.
The said Children W and J are to spend time with the Applicant Father from 9:00am on Saturday 12 June to 4:00pm Monday 14 June 2010 and for the purpose of that order the Applicant Father is to pay the Children’s reasonable travelling expenses and make the appropriate airline bookings or other appropriate transport arrangements.
IT IS NOTED that publication of this judgment under the pseudonym Bleeker & Bleeker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2122 of 2010
| MR BLEEKER |
Applicant
And
| MS BLEEKER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of two boys aged 14 and 9 years respectively for interim orders that the Children should live with him rather than the Mother. In a Minute of Order filed in Court on the afternoon of the hearing the Father seeks a recovery order addressed to the Australian Federal Police, an order that the Children live with him, and orders that the Mother spend time with the Children:
a)On alternate weekends;
b)On the Wednesday of each alternate week; and
c)For half of each school holiday period
Although the Respondent Mother has not filed a response, she has filed an affidavit in which she sets out her view that the Children should remain living with her in Brisbane, where she now resides. She suggests that the Father have communication with the Children by telephone on three afternoons each a week and by Skype. She also suggests that the Father should travel to Brisbane once a month so that the Children can spend regular weekends with him.
Background
The Father and Mother were married [in] 1994 and separated in about September 2004. There are two children, both boys. W was born [in] 1996 and J was born [in] 2000.
When the Father and Mother separated, the Father left the home and the Mother remained with the children.
On 24th June 2005, the parties entered into interim consent orders at [omitted] Children’s Court, the effect of which orders were:
a)That the proceedings be transferred to the Family Court of Australia at Sydney with a view to the matter being included in that Court’s Children’s Cases program;
b)Restraining the Mother from changing the place of residence of the Children to a place outside the Sydney metropolitan area;
c)Providing that the Children would reside with the Mother and that the Father would have contact with them as follows:
i)In a two week cycle from Friday after school until Monday after school in the first week and from Wednesday after school until Sunday morning at 10:00am in the second week.
ii)For half of each school holiday period as agreed between the parties and failing agreement for the first half in each odd numbered year and the second half in each even numbered year.
iii)By telephone each evening between 6:00pm and 7:00pm with the Father to call the Children and at any reasonable time.
iv)At such other times as agreed between the parties.
There does not appear to be a copy of any subsequent order from the Family Court on this Court’s file.
The Father deposed in his affidavit sworn on 14th April 2010 that from 2005 the Children stayed with him for six nights each fortnight.
The Father further deposed that he was unable to contact the Children on the telephone until on 24th March 2010 the Mother answered the Child W’s telephone and advised the Father that the Child was scared to talk to him and then terminated the call.
The Father received an email from the Mother’s solicitors on
26th March 2010, saying:
Please be advised that we have taken instructions to act for your estranged wife Ms Bleeker. Please note that the children born of your relationship with our client will not be available for collection this afternoon. Our client has moved into a safe house as she instructs us that she is in fear of her and her children’s safety.
Please revert[1] to our firm in relation to any correspondence that you may have and note that we are drafting the proceedings to have the current “Parenting Orders” set aside and variations made. On our instructions we believe that she has sound grounds to bring her application for variations to the Parenting Orders and an Application for Domestic Violence Orders.[2]
[1] sic
[2] Affidavit of Mr Bleeker sworn 14.4.2010 Annexure “B”
The Father commenced proceedings in the Local Court of New South Wales at [omitted] in order to enforce the earlier orders. On 30th March 2010 the Local Court transferred the application to the Federal Magistrates Court at Sydney and made orders that the Father could telephone the Children daily between 7:00 and 7:30pm.
The Respondent Mother deposed in her affidavit sworn 15th April 2010 that she has moved to Brisbane with the Children and enrolled them in school there[3].
[3] Affidavit of Ms Bleeker sworn 15.4.2010 at paragraphs [20] and [47]
On 26th March 2010 the Mother made an application for a Protection Order under the Domestic and Family Violence Protection Act 1989 (Qld). The application was returnable at the Magistrates Court on
14th April 2010 but no order was made, as the Mother deposed in her affidavit that the Police Prosecutor told the Court that the Father had not been served.[4]
[4] Affidavit of Ms Bleeker sworn 15.4.2010 at [19]
Affidavit Evidence
The Mother claims that she left Sydney and moved to Brisbane “for the support of my family because ever we separated the Applicant has continued to harass and abuse me and my children psychologically and so as to better control my son J’s illness.[5]
[5] Ibid at [20]
She deposes that the Child suffers from Anaphylaxis, which causes an adverse effect if he consumes certain foods, to the extent that it is life-threatening. He also suffers from Asthma and eczema. The Mother claims that the Father does not give the Child the necessary medication when the Child is in his care. She claims that the Father abuses and intimidates her and the Children.
In her application for a protection order, the Mother makes the following claims about the Father’s behaviour:
·On 24th March 2010 the Father used offensive language to her on the telephone.
·On 19th March 2010 the Child J passed on a message from the Father to the Mother that used offensive language.
·The Father started to abuse the Mother when she became pregnant with the older boy W in 1995.
·The Father began smoking marijuana and drinking heavily.
·The Father intimidated and emotionally abused her.
·When the Child W was a baby that Father would order the Mother out of bed and require her to drive to an address in a Sydney suburb to pick up marijuana for him.
·The Father would regularly refer to women as “whores”.
·The Father often drove a motor when he had been drinking or was affected by drugs.
·The Father had often threatened to have her harmed by criminals.
The Mother claimed in her application for a protection order:
I came up to Queensland on Friday 19 March 2010 as I could no longer cope with the continued verbal abuse, harassment, intimidation and threats made by Mr Bleeker. My children are also very fearful for me as they are the carriers of most of his insidious messages to me…
I am very fearful that he will carry out his previous threats to harm me. I am fearful that he has contacts in the criminal world. My sons are afraid of their father and his reactions to day to day happenings but more so of his reactions to the children not wanting to see him.[6]
[6] Attachment to the mother’s affidavit of 15.4.2010 marked Paragraph ‘18’
In the Father’s later affidavit sworn 6th May 2010 he denies the allegations about his behaviour made by the Mother. He claims that the Mother:
a)Had consulted a psychiatrist to deal with issues arising from her “traumatic childhood”;
b)Was violent to him and used abusive language to him;
c)Used various illicit substances at times during their relationship.
The Father deposes that he has spoken regularly to the Children on the telephone as a result of the order made by [omitted] Local Court on 30th March and that the Children have told him that they love him and miss him.
He further deposes that he has been in a relationship with a lady since October 2008 and has resided with her since that date. He states that he pays child support regularly and pays the private school fees for the older boy, W. He annexes copies of the Children’s recent school reports to his affidavit and states that the Children were doing well at their schools. He also annexed a copy of a urine drug screen report dated 22nd April 2010 showing that no illicit drugs were detected.[7]
[7] Affidavit of Mr Bleeker dated 6 May 2010 annexure “K”
Submissions
Mr Reeve, who appeared for the Father, submitted that the parents in this case are not young parents, nor are they recently separated. They separated in 2004. They agreed to orders in the [omitted] Children’s Court on 24th June 2005 relating to their children. The Father has had the next best thing to shared care of the Children since then until the Mother moved the Children to Brisbane. The Mother’s solicitor’s email to the Father of 26th March 2010 shows that the Mother had made a unilateral relocation, which the Mother was specifically restrained from doing by Order 3.1 made on 24th June 2005. The Mother’s actions constitute an ongoing unexplained breach of the consent orders.
Mr Reeve further submitted that at the heart of the Mother’s case is a desire to go and live in Brisbane. If, on an interim basis, a parent can unilaterally relocate the final decision is so much more difficult because the Children will have settled into new schools, amongst other matters. That very issue was determined by the consent orders in 2005.
It was further submitted that the Mother clearly knew of the orders and that there were no actions shown that would permit a unilateral relocation. There are no extreme and established allegations of violence, nor is there any evidence of serious abuse of the Children. The objective evidence does not, he submitted, bear out the Mother’s contention that the Father is a threat to the Children. The Child J’s anaphylaxis is a condition that the Child has faced since he was a baby.
Again, Mr Reeve submitted that the Father claims to have a loving relationship with the Children and that they have a desire to communicate with him. There is enough evidence there for the Court to be sceptical of the Mother’s claim that the Father is a “monster” and that the Children do not wish to see him.
Further, Mr Reeve submitted on behalf of the Father that there are some questions about the Mother’s ability to cope with the Children and there is a dysfunctional aspect to the Mother’s home.
Finally, it was submitted that the school reports annexed to the Father’s affidavit[8] show that the Children have performed acceptably at school and do not show any signs of traumatised behaviour.
[8] At annexures “F”, “G” and “H”
Mr Colavitti, for the Mother, submitted that the Father’s application for a recovery order is inappropriate and that this is a case where it would be appropriate for the Court to order that the Children should be independently represented under s.68L of the Family Law Act.
Mr Colavitti submitted that the Mother’s move was the result of the Father’s continued harassment and abuse that was directed at her. She became very depressed because “everything was coming down on her”. The Mother has extended family in Brisbane and she wishes to live there because of that family support.
It was further submitted that it is in the best interests of the Children to live with their mother in Brisbane in circumstances where their parents do not get on. They are doing well at school.
In reply, Mr Reeve submitted that the Mother’s proposal that the Children should spend one weekend a month with the Father in Brisbane was inadequate to maintain the relationship between them. Further, the results of the Father’s drug test removed any suggestion that he is a drug abuser.
Conclusions
The Father’s proposal is that the Mother should return the Children to the Sydney metropolitan area or else a recovery order should issue. The Mother, however, proposes that the Children should remain living with her in Brisbane and the Father should visit them one weekend a month at his expense. The parties are in substantial dispute about:
a)Each other’s parenting capacity;
b)Each other’s drug use;
c)Whether or not the Father intimidates the Mother and the Children; and
d)Whether the Children wish to spend time with the Father or are afraid of him.
There are few agreed or uncontested facts. There is a Court order in existence, made on 24th June 2005. The Child J suffers from anaphylaxis and has done so for a number of years. The Children are with their mother in Brisbane and are attending school. The younger child J attends [W] State School and the older child W attends the [W] High School.
Turning to the matters set out in s.60CC of the Family Law Act, the evidence of the parties seems to be diametrically opposed that it is well-nigh impossible to make any findings of fact.
The Court must consider the presumption under s.61DA of the Act relating to equal shared parental responsibility. There is insufficient uncontested evidence to allow any finding that it is not appropriate to apply the presumption.
What can be said is that the parties have been in a state of disagreement about the Children for a number of years and the Mother has decided that it would be more congenial for her to move out of Sydney and relocate to Brisbane, where she has extended family. This is understandable, but the evidence before the Court shows that there are consent orders made on 24th June 2005 that remain in force. Order 3 states:
PENDING FURTHER ORDER
3. The Mother shall be restrained from:
3.1changing the place of residence of the children W born [in] 1996 and J born [in] 2000 “the children” to a place outside the Sydney metropolitan area;
3.2 changing W’s school.
As there is no evidence before the Court to show that this order was ever varied or revoked, I am satisfied that it is still in force. It follows that the Mother has breached that order by relocating the Children to Brisbane and enrolling the Children in another school, although technically there is no restraint on changing the younger boy’s school.
The Mother has not provided evidence of any particular event or series of events that would justify a unilateral relocation of the Children out of Sydney to another State. Her complaints in the application go all the way back to 1995:
(The Father) started to abuse me about the time I got pregnant with W in 1995.
The only recent matters of which she complains relate to matters on 19th and 24th March 2010, which are not of themselves particularly serious. In any event, the Mother had already put in train her plan to move to Brisbane. The reference at paragraph 43 of her affidavit to the Child W displaying anxiety and stress related problems, resulting in the Mother taking the Child to see a clinical psychologist, is hardly a justification for the Mother’s actions in taking the Children to Brisbane to live.
Whilst the Mother claims that the Children do not wish to see the Father, she is still prepared to offer that the Father spend one weekend every month with the boys in Brisbane.
Her affidavit filed in this Court and her application for a Protection Order in the Queensland Magistrates Court could lead to an inference of an attempt to provide an ex post facto justification of her move to Brisbane.
The Mother should return the children to reside in the Sydney metropolitan area until the matter has been decided by a final hearing. She should re-enrol the Children in their former schools, [C] High School at and [A] Public School, New South Wales.
If the Mother is unwilling to reside in Sydney until the matter is decided on a final basis, then the Children should live with the Father.
The timing of the move is important. The Children have been enrolled in schools in Brisbane. They were taken out of school in New South Wales during the school term and enrolled in schools in Queensland. To remove them from school at this stage and re-enrol them in school in New South Wales during term time would be confusing to them and disruptive to their education.
Accordingly, the Children should finish the school term in Queensland and recommence school in New South Wales at the beginning of Term 3 in this State. I am of the view that, whilst this arrangement is far from perfect, it will at least minimise the disruption to the boys’ education and must, therefore, be in their best interests (see Family Law Act, s.60CA). The dates of school terms in New South Wales and Queensland are matters of public knowledge.
The primary considerations that the Court must consider when determining what is in the Children’s best interests are:
a)The benefits to them of having a meaningful relationship with of their parents (s.60CC(2)(a)); and
b)The need to protect them from physical or psychological harm (s.60CC(2)(b)).
The evidence does not permit a finding that the Children will suffer psychological harm in spending time with their Father. The Children need to spend a period of time with their father between the time of these orders and their return to Sydney. In my view, they should spend a weekend in Sydney with their father in their father’s home. The Queen’s Birthday long weekend from Saturday 12th to Monday 14th June would seem to be appropriate. The Father should arrange for the Child to fly or otherwise travel to Sydney from Brisbane on the Saturday morning and return them to Brisbane on the Monday. He may need to travel with them, as they are relatively young. On this occasion, the Father should bear the Children’s travelling expenses.
Any further arrangements that need to be made will depend on whether the Mother decides to relocate herself back to Sydney or whether she chooses to remain in Brisbane, in which case the Children should live with the Father.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date:
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