BUNYON & LEWIS

[2013] FamCA 64

FAMILY COURT OF AUSTRALIA

BUNYON & LEWIS [2013] FamCA 64

FAMILY LAW – CHILDREN - Application by non-parent relative of a child against father to return child from Netherlands to Australia so that parenting orders of a contact nature can be considered - Application refused - Review of Senior Registrar’s decision to order child’s return - Orders made ex parte discharged.

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286
Sampson and Hartnett (No. 10) unreported, Full Court Bryant CJ, Kay and Warnick JJ, 22 November 2007

APPLICANT: Ms Bunyon

RESPONDENT: Mr Lewis

FILE NUMBER: MLC 11439 of 2012

DATE DELIVERED: 15 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

1. That the orders made on 8 January 2013 are discharged.

2. That until further order, the child E live with the father.

3. That all extant applications for final orders are listed to a DIRECTIONS HEARING before the Honourable Justice Cronin at 2.15 pm on 8 May 2013 for the purposes of listing the matter for final hearing.

4. That the parties and if represented, their legal practitioners, attend the first day of hearing.

5. That notwithstanding applications/responses have already been filed:

   (a)by 4 pm on 24 April 2013, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   (b)by 4 pm on 1 May 2013, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

6. That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

7. That pursuant to s.65DA(2) and s.62B, 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 the Fact Sheet attached hereto and these particulars are included in these orders.

8. That all extant interim applications are otherwise dismissed.

AND THE COURT NOTES:

If a party does not comply with paragraph 5 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bunyon & Lewis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11439  of 2012

Ms Bunyon

Applicant

And

Mr Lewis

Respondent

REASONS FOR JUDGMENT

1. This case is about the child E, (“the child”) who recently turned 4 years of age. As I write these reasons, she is living in the Netherlands where she was moved by her father Mr Lewis (to whom I shall refer as “the father”) in December 2012. It was intended by the father that the move be permanent.

2. Ms Bunyon (to whom I shall refer as “the applicant”) is a first cousin of the child’s late mother and she seeks an order that the child be returned to live in Australia. That is opposed by the father.

3. Tragically, the child’s mother died of mesothelioma in November 2011.

4. The case came before me by way of an application to review the decision of the Senior Registrar who, on 8 January 2013, made orders in the following terms:

   1.That all times be abridged and that this Application be heard on an urgent basis.

   2.That in the event that the Father fails to enter an appearance this Application be heard on an ex-parte basis.

   3.That until further Order the Father forthwith do all such acts and things and sign all such documents as may be required to forthwith return [the child E], born … December 2008 ([the child]) to the Commonwealth of Australia and subject to other Orders under the care of the Applicant.

   4.That the Applicant and the Father have joint parental responsibility for [the child’s] long term care, welfare and development, including but not limited to all decisions in respect of the following issues:

   (a)      [The child’s] city and country of residence;

   (b)[The child’s] travel outside the Commonwealth of Australia;

   (c)[The child’s] education; and

   (d)[The child’s] participation in the Jewish culture and community.

   5.That until further Order the Applicant and the Father each have sole parental responsibility for all decisions relating to [the child’s] day to day care, welfare and development at all times which she lives with them respectively pursuant to these Orders.

   …

   9.That until further Order and until the Father lives in the Melbourne Metropolitan area, [the child] live with the Applicant.

5. The Senior Registrar made other orders for the service of those orders and directed the case be returned before him on 4 February 2013. It is not entirely clear to me but it would seem that the documents concerning the application that was heard on 8 January, were not served on the father although solicitors acting for him in Melbourne may have had their attention drawn to the fact that proceedings were under way.

6. The application by the applicant was filed on 14 December 2012. The father left Australia on 6 December 2012. It has not been suggested that there has been a breach of s 65Z(1) of the Family Law Act 1975. Indeed, the father’s evidence now before me makes clear that, as he saw himself as the sole surviving parent, he was entitled to do what he did.

7. When the case returned to the Court on 4 February 2013, the father had not returned to Australia and nor had the child.

8. On 4 February 2013 before the Senior Registrar, the father was represented by counsel and an affidavit was then filed.  The father’s position was to seek a review of the ex parte orders made on 8 January.  Orders were then made by the Senior Registrar giving him that opportunity.  The applicant’s counsel then undertook that enforcement proceedings would not be commenced.

9. Rule 18.10 of the Family Law Rules 2004 provides that the Court must hear an application for a review as an original hearing. As such, I examined the matter as if it was being argued for the first time.

10. The approach to this hearing, adopted without dissent, was that I heard submissions and have had an opportunity to read in detail the following materials filed by both parties:

    (a)    affidavits by the applicant filed 14 December 2012, 8 January 2013 and 7 February 2013; and

    (b)    affidavits by the respondent filed 4 February 2013 and 7 February 2013.

11. In discussion upon the conclusion of the oral submissions, I indicated that if there were legal matters about which further submissions were to be made, the parties had until the following Monday to make those submissions.

12. By letter dated Monday 11 February 2013, emailed to my associate and which was copied in to the solicitors for the respondent, a document described as an additional submission was put on behalf of the applicant.  In essence, it indicated that further instructions had been received from the applicant under which a deceased estate to which I shall refer below, was prepared to meet the travel and living costs of the father on an immediate basis to ensure the practicality of his return.  Indeed, the correspondence attached to that submission referred to precise amounts being offered to the father.

13. In my view, it is not appropriate that I should consider those matters without proper evidence.  They are matters that should be properly considered at a trial.  I was also provided with a letter of acknowledgment by the solicitors for the father but it indicated that they needed 14 days to obtain a proper response.  That was not what I intended to occur nor should it be the course taken having regard to the way in which the case was conducted.  Any matters associated with the long-term issues can be dealt with at trial.

14. Later in these reasons, I shall refer to the impracticability as I find it, of the father returning with the child and nothing I have read would enable me to adopt a different position.  Accordingly, I propose to deal with the matter on the basis of the evidence referred to above and the submissions of the parties. 

15. In Goode and Goode (2006) FLC 93-286, the Full Court set out how an interim hearing should be conducted. It was observed by the Court that there will often be conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of a child. Although this dispute is not between parents, the observation is pertinent. The history of the relationship of not only the father and the deceased mother but also the father and the mother’s family seems to be very much disputed.

16. The Full Court observed that the interim process involved identifying the competing proposals of the parties, the issues in dispute and any agreed or uncontested relevant facts followed by a consideration of the matters in s 60CC. In respect of those matters, the Court said the judge should, if possible, make findings and then follow the legislative pathway.

17. Relevant to this case, despite the legislative pathway, the Full Court said the procedure for making interim parenting orders continued to be an abridged process where the scope of the enquiry was “significantly curtailed”.  Again relevantly, where findings of fact could not be made, the Court should not be drawn into matters relating to the merits of the substantive case.

18. This interim hearing must be significantly curtailed. The evidence of both the applicant and the father is contentious as to the nature of the various relationships involved in the child’s life since her birth. I am not in a position to test the evidence nor to make any findings other than on some limited matters.

19. In my view, the orders of the Senior Registrar have to be discharged and the substantive proceedings adjourned for a final hearing where the evidence can be properly tested and the future proposals for the child properly considered. These are my reasons.

20. The uncontentious facts seem to be that the father was born in the Netherlands and lived there until 2003. He went to New Zealand where he worked in the information technology industry. He is a citizen of both New Zealand and the Netherlands. He met the mother in San Francisco in 2006. She was a Melbourne resident. In December 2006, the father moved to live with the mother in Melbourne. She was then 44 years of age and in 2007, they commenced an IVF program. Not long later, the mother was diagnosed with mesothelioma but it was thought that she was in remission. The mother then fell pregnant and the child was born in December 2008. Both parents juggled parenthood and work.

21. The mother belonged to a Jewish family and cultural practices involved the mother attending her parents’ home in a traditional way.

22. As the child grew, she became bi-lingual and attended a weekly Dutch playgroup as well as Dutch language activities.

23. In October 2010, the mother’s illness returned. In the applicant’s evidence, strong allegations of family violence were made against the father towards the mother. Indeed, a family violence order was made in January 2011.

24. The father denied any such violence towards the mother but acknowledged that there were arguments and that a family violence order was made. It was his evidence that despite the interim intervention order being made, he and the mother continued to live together, went to counselling and ultimately, the proceedings were resolved by an undertaking.

25. Although the father’s evidence included copies of messages between he and the mother which would tend to suggest that she was somewhat apologetic about the intervention proceedings, it is not something that I could or should make any finding about because of the serious nature of such a finding.

26. However, the mother subsequently obtained another order which required the father to vacate their home but again, the correspondence leaves me wondering about its basis.

27. This separation of the parties gave rise to a shared parenting arrangement for the child and that must have been reasonably successful because there were no court orders and the mother and father saw each other regularly. The evidence of that seems uncontroversial. It was the father’s evidence that he attended medical appointments with the mother as her health deteriorated. Sadly, the mother died in November 2011.

28. One controversial issue to which the applicant pointed was evidence of the father bringing an application in the Supreme Court of Victoria using a firm of solicitors other than those acting for him in these proceedings. It was submitted by counsel for the applicant that the father was endeavouring to reduce an entitlement of the child by such an application against the estate of the mother.  The applicant is one of the executors.  On the other hand, the father’s evidence which has a ring of reality about it, was that because of the savage pace of the mother’s illness, no property division had occurred between them upon the ending of their relationship. It would not be appropriate for me to draw any inference about the father’s action in the Supreme Court.

29. In respect of the father using different solicitors, there was considerable evidence and indeed angst about the lack of co-operation by the family law solicitors in advising of the father’s actions and whereabouts. I have carefully read that correspondence and do not find anything sinister or indeed, unusual about it.

30. Over the 12 month period after the mother’s death, the child remained living with him.

31. It is relevant then to look at the interim orders sought by each party in so far as they should be dealt with as I have outlined above. I am conscious that there are final orders sought but those are matters for another day.

32. The applicant sought that:

    (a)The child be returned to Australia and live in the Melbourne metropolitan area;

    (b)The applicant and the father have “joint parental responsibility” for the child’s long term care, welfare and development;

    (c)The child live with the applicant each Friday from 6 pm to 8.30 pm for the Shabbat dinner with the grandparents;

    (d)The child live with the applicant each alternate weekend from 4.30 pm Friday to 6 pm Sunday; and

    (e)The child spend holidays with the applicant at times designated

33. One critical order sought by the applicant on an interim basis was that the child live with her until the father returned to Melbourne.

34. By his response, the father sought interim orders that:

    (a)he have sole parental responsibility for the child;

    (b)The child live with him; and

    (c)The child communicate with the grandparents weekly by Skype.

35. Each party sought costs against the other.

36. In my view, the orders sought by the applicant are unrealistic in the circumstances.

37. The two critical evidentiary matters seem to me to be:

    i)why did the father leave Australia and was it done surreptitiously and to the disadvantage of the child?

    ii)Does the father have the capacity to appropriately care for the child until this Court can look at the longer term issues properly?

38. In respect of parental capacity, there is little doubt that the applicant could care for the child. However, it is also apparent that she wants the father to return to Australia so that the existing relationship between the child and her maternal family can be sustained.

39. The applicant alleged that accepting that the father had harassed the mother before her death, she was concerned that his behaviour may occur with the child. Nothing I read would enable me to find that such a concern was justified. There was inferential criticism by the applicant that the father was in the Netherlands with his elderly mother and “without proper social and family support”. Again, this seems to be speculation but having regard to the matters to which I shall turn below in relation to the father’s evidence, I think I can find that he is no worse off in the Netherlands than he would be in Australia. The relevance of the applicant’s assertion is marginal bearing in mind that the father will be the primary carer of this child into the future even on her case (provided he returns to Australia).

40. The applicant alleged the father had a habit of changing countries without proper planning and he may find it difficult to find employment in the Netherlands. Again, when I turn to the father’s evidence, that allegation seems largely irrelevant.

41. The applicant maintained that subsequent to the mother’s death, the presence of the child in Melbourne had enabled the maternal family to monitor her wellbeing. That was based upon the assertion that the father’s behaviour during the mother’s life was such that he had a propensity to cause emotional harm to the child. That is a very long bow to draw and one upon which I could not make any finding of fact having regard to my earlier comments about the father’s evidence of his relationship with the mother shortly before her untimely death.

42. In her first affidavit, the applicant said that when the father became aware of her intention to seek parenting orders, he “took flight”. Whilst the father did not respond to that assertion in his affidavit, he did say that his failure to specifically respond to the applicant’s large affidavit should not be taken as an admission. Again because I accept the evidence of the father below about why he took the child to the Netherlands, this allegation seems to me to be one that should not affect my interim determination and is something that can be fully investigated at trial.

43. Having carefully considered all of the applicant’s affidavit material, there is little common ground with the father.

44. In his evidence, the father set out the history and the pre and post death period of the mother. What is significant is his explanation for leaving with the child whether it was hastily done or otherwise. He said:

    (a)In September 2012, he lost his job;

    (b)It was clear to him that his residential lease was not going to be renewed;

    (c)He went to Centrelink and obtained the family tax benefit of $228 per week but was not eligible for sole parents’ benefit or unemployment benefit;

    (d)The child had been in his sole care and he had presumed that he was solely responsible for making decisions about her;

    (e)He sought help from the executors of the mother’s estate but it was refused.  It is interesting to note now that there is an open offer to provide assistance in the form to which I earlier referred in what was described as the “additional submissions”.  As I earlier indicated, those are matters more appropriate for a trial.  That assistance included a car rental and other money and whitegoods; and

    (f)He complained that he was previously only offered half of the crèche fees.

45. The father asserted that the relationship between the applicant and the child was remote. Counsel for the applicant pointed to his affidavit to indicate that he misled the Court by saying that the applicant had only had one contact with the child. When read in the context of the various statements of the father, that was obviously not right but as a whole, I could not find that there was any attempt to mislead the Court.

46. There was also considerable debate about how much money the father had at his disposal at the time of his departure. Whilst I found that evidence confusing, I could hardly find that it was a lie or an attempt to portray himself as impecunious such that the Court could not make him return. On the contrary, even if he had the money asserted by both sides, it would barely cover an airfare to Australia. It was submitted by counsel for the applicant that what was being sought was an order that the child return. With respect, the child is four, has lost her mother, is dependent upon her father and has a relationship with her extended maternal family which is hard to define in detail. I am unsure how a four year old in that situation would simply be flown back to Australia without some clear indication of what was to happen to her relationship with her father.  The new offer to provide financial assistance was clearly not part of the proposal put to me during the hearing.  Having regard to the reasons that the father articulated for his need to leave Australia, the current offer by the applicant tends to support the reasons for which he left the country.  As I have indicated elsewhere in these reasons, those are matters that need to be tested properly at trial and I do not consider it appropriate nor proper, to make a determination just on the basis of the offer.  That offer is simply something to take into account amidst the many other parenting questions.

1. Accepting the basic facts of the father’s financial and personal situation including the fact that he is in a country he calls “home” despite not having lived there for 10 years, it would seem that he is otherwise not only capable of caring for the child but doing so.

2. In Goode (supra), the Full Court observed that the legal framework still had to be considered and it is helpful in this case to do that now.

3. There was no argument here about jurisdiction. The father raised the forum issue but that is not a matter that I should concern myself about now.

4. There was also no argument that the applicant is a person who has an interest in the welfare of the child. Her entitlement to bring the application was not challenged.

5. Section 65D of the Act provides that in a parenting proceeding, subject to some considerations to which I shall turn, the Court should make such order as it considers proper. That must obviously take into account the other provisions in Part VII.

6. Section 60CA provides that when making a parenting order, the Court must consider the best interests of a child as the paramount consideration.

7. To determine what is in the best interests of a child, the Court is mandated to take into its consideration, the matters in s 60CC. Many of those matters refer to facts about which I cannot make any finding. Suffice to say, despite the speculation and belief of the applicant, there is no evidence that the child is at risk in the care of her father. I also observe that the reference in the section to the benefit of a meaningful relationship refers to parents.

8. Clearly, the rest of s 60CC and its additional considerations refer to matters where the evidence needs to be fleshed out and tested. There is a very strong reference to other persons in that provision and I conclude the Act considers the role of extended family members to be important in the child’s life. But, as I earlier indicated, the questions that must be answered in this interim hearing are whether the father was running away to avoid those roles in the child’s life and whether he has the capacity to care for her. I am not satisfied that he was running away and his evidence which is still to be tested is that he wants the family to be involved in the child’s life. It is most unfortunate that the child has already lost her mother at such a young age but it would also be sad if she did not have the benefit that s 60B of the Act refers to which is the right to spend time with “other people significant” to her care, welfare and development. Section 60B however also refers to the right of the child to having all of the benefits that our community expects parents to provide for their children. She now only has one such parent.

9. It occurs to me that having regard to what I have said in paragraphs 40, 42 and 43 above, the best  interests of the child are currently being met by her father and there is no basis for me to make an order of the nature sought by the applicant that cannot be fulfilled immediately.

10. In discussion, I also expressed concern about the power of the Court to order someone to live in a particular location. As counsel for the applicant pointed out, this was about where the child lived but because of her vulnerability, she needs her father to be with her and there is no basis upon which I could find that it was practicable to make the orders sought by the applicant at this stage even if I took the offer seriously. (see the discussion in Sampson and Hartnett (No. 10) unreported Full Court 22 November 2007)

11. I find it is in the best interests of the child that she live with her father on an interim basis. I would expect that he would ensure there is an ongoing relationship by Skype and I do not intend to make that order at this stage because I am uncertain as to the details. I will give liberty to apply to ensure that any difficulty about arranging that is covered.

12. Finally, I turn to the issue of parental responsibility.

13. The Act provides the pathway to be followed when making a parenting order but that relates to parents (see ss 61DA and 65DAA). Those matters concern a presumption. That does not mean that a Court cannot make such an order for people who are not parents.

14. Counsel for the father submitted that the approach taken by the applicant in seeking the joint parenting order was for an extraneous purpose and not one for which the provision was designed. Below, I shall refer to s 65DAC and its focus on a joint approach in relation to major long term issues as defined in s 4 of the Act. On the face of the remarks of the Senior Registrar in his reasons, there is a hint that the applicant did have an extraneous purpose. However, at this point in the litigation, I would not make that finding and ultimately it may not matter.

15. In this case, the apparent ill feeling between the parties would suggest that there is little respect and only a modicum of co-operation. There is no doubt tension between the applicant in her capacity as the executor of the mother’s estate and the father because of the Supreme Court litigation. That much was clear from the submissions of the applicant’s counsel. The suggestion that the applicant and the mother’s family needed to monitor the child’s development is something that can be fleshed out and tested at trial but there is not sufficient evidence for the reasons outlined, for me to find that the father cannot be trusted to deal properly with the child’s welfare and development.

16. Section 65DAC provides that if an order is made for two persons to share parental responsibility, the order is taken to require the decision to be made by them jointly. That order requires them to consult and make a genuine effort to come to a joint decision. That is unlikely at the moment.

17. I earlier mentioned that s 65D requires the Court to make an order that is proper. In my view, on this evidence, it would not be proper for me to put in place an order for decision making that currently could not be seen to work.

I certify that the preceding Sixty Three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 February 2013.

Associate: 

Date:  15 February 2013