Byrne & Ward

[2021] FamCA 515

FAMILY COURT OF AUSTRALIA

Byrne & Ward [2021] FamCA 515

File number(s):

MLC 7364 of 2021

Judgment of:

BENNETT J

Date of judgment:

1 July 2021

Catchwords:

FAMILY LAW – PARENTING – urgent application by way of appeal against decision of the state Magistrate – where lawyers appearing knew very little about the case – where on a hearing de novo the applicant/appellant failed to adduce evidence as to best interests of child (18 months old) – where recovery order made in the court of summary jurisdiction was not set aside.

FAMILY LAW – PARENTING – where matter adjourned to be dealt with on adjourned date as to interim parenting – where dispute resolution procedure ordered – where s91B order made requesting intervention of Department of Families, Fairness, and Housing.

Legislation:

Family Law Act 1975 (Cth)

Number of paragraphs:

17

Date of hearing:

1 July 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Richardson

Solicitor for the Applicant:

Knight Family Lawyers

Counsel for the Respondent:

Ms Chennell

Solicitor for the Respondent:

Community Legal Service

ORDERS

MLC 7364 2021
BETWEEN:	MR BYRNE Applicant
AND:	MS WARD Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	1 JULY 2021

IT IS ORDERED THAT

1.All times be abridged and the father’s Notice of Appeal against the Order made on 30 June 2021 in the D City Magistrates’ Court be listed urgently this afternoon in accordance with the written request of the applicant father. The correspondence from the father’s lawyers dated 1 July 2021 be marked Exhibit “C1” and remain on the Court file.

2.I adjourn the further hearing of this matter to me on Friday 9 July 2021 at 9am for a determination of interim parenting issues with the hearing estimated to take 50 minutes (“the adjourned date”).

3.The father deliver the child X born … 2019 to the mother at the reception desk of the D City Magistrates Court on 2 July 2021 at 2pm and the child remain in the care of the mother until further order or the adjourned date (whichever first occurs).

4.The applicant father file and serve any response to the mother’s initiating application and all affidavit evidence upon which he intends to rely on appeal by no later than 5pm Monday 5 July 2021.

5.The mother file and serve all affidavit material upon which she proposes to rely and proof of service of her application initiating proceedings on the father by not later than 4pm Wednesday 7 July 2021.

6.The parties attended a Family Dispute Resolution Conference to be convened as soon as practicable and a time and date to be notified by my Chambers to the parties.

IT IS REQUESTED

7.That the Secretary of the Department of Human Services of the State of Victoria intervene in these proceedings pursuant to Section 91B of the Family Law Act 1975. In the event it is not possible for the Department to provide a response by the adjourned date IT IS FURTHER REQUESTED that the co-located Departmental officer provide such details and information as is known to the Department to the Court in relation to:

(a)the parents, Ms Ward and Mr Byrne , (the dates of birth for whom are not known);

(b)Y, born … 2007; and

(c)the subject child X born … 2019.

IT IS FURTHER ORDERED THAT:

8.The hearing on the adjourned date be conducted electronically on the court’s MS team platform. Parents are required to participate in person and be equipped with audio visual connectivity so that they can participate in and be seen and heard for the hearing.

9.Liberty to apply on short notice is reserved to each party.

10.My reasons for decision be transcribed.

11.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns X who is 18 months old and comes before me today as the Urgent Matters Judge. It is an appeal against orders in the Magistrates Court sitting at D City made yesterday.  The Magistrate ordered that the father deliver X to the mother tomorrow at the reception of the Magistrates’ Court at D City. The father denies that he was served with the mother’s application or had notice of the hearing. The solicitor for the mother informs the court that the father had been served. In any event, the recovery order was made in the father’s absence.

2. This afternoon Mr Richardson of counsel appears on behalf of the applicant.  Ms Chennell, appears on behalf of the respondent mother.

3. The application came under correspondence from Nikita Knight who acts for the appellant father.  Omitting formal and irrelevant parts, the correspondence, which I will mark as an exhibit “C1”, reads as follows:

   I wish to file this appeal against the orders made in the Magistrates Court of Victoria sitting at D City.  I know that the Magistrates Court has made orders on an ex parte basis.  My client was served today.  I request if possible for the appeal to be listed either later today or tomorrow morning prior to 5 pm. 

4. That email was sent today, 1 July 2021, at 12.52 pm.  Registrar Field asked my Chambers to take the matter this afternoon and it came to our attention after lunch. We commenced the hearing at 4:00 p.m. as an Urgent Matter. The hearing was conducted on the courts’ MSTeams platform. Both parents were invited to join the platform and participate in (observe) the hearing. Neither did so.

5. The court has agreed to the request of the applicant father to list the matter this afternoon. It is disappointing that I do not have any documents other than the father’s Notice of Appeal. An appeal from an order by a court of summary jurisdiction proceeds as hearing de novo but I do not have the documents or the file from the Magistrates’ Court which would, presumably, contain the mother’s application at first instance, for a recovery order.

6. The application concerns only the child X, born in 2019.  X has an older sister Y, born in 2007.  She is the natural child of the parents but the mother does not seek any orders in relation to Y. It is common ground that Y resided with the mother until recently when she went to live with the father.

7. Mr Richardson for the applicant father has informed the court that he is instructed that the parties were sharing care of X on an eight-six arrangement whereas the solicitors for the mother say that the arrangement was week and week about.  It is common ground that there were no court orders and that this was a matter of agreement.  Both parents have their households in Suburb B which is about 50 minutes away from D City, a major Victorian rural city. 

8. Neither practitioner could tell me when the parties commenced living together.  Ms Chennell indicated that the parties separated in approximately 2017.  Accordingly, X is a child conceived and born after the parties’ separation. Ms Chennell said the conception of X occurred in an attempted reconciliation.  Ms Chennell thinks that her client is approximately 35 years old.  Mr Richardson doesn’t know how old his client is.  I asked Mr Richardson on what basis his client opposed the child being returned to the care of the mother tomorrow.  Mr Richardson said that he is instructed that there are “concerns about drugs and neglect and other concerns which are not fully apparent to me”, or words to that effect.

9. These proceedings are brought under Part VII of the Family Law Act 1975 (Cth). Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the child’s best interests as the paramount consideration. In determining X’s best interests, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.

10. The primary considerations appear in s 60CC(2) and 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

    with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[1]

    [1] Family Law Act 1975 (Cth) s 60CC(2)(b).

11. There are several additional considerations. In interim matters the court’s considerations will necessarily be limited by any absence of relevant evidence and the inability to test evidence in cross examination. Today, I am limited to the history which I have recorded above as being common ground.

12. It is common ground that the parties have substantially shared the care of X and that X has been in the care of the mother for at least six or seven days in every fortnight.  In the absence of evidence to the contrary, it seems to me that it is reasonable that the child return to the mother as ordered and that be effected tomorrow at the D City Magistrates Court at 2 pm.  I will not allow the father’s appeal and nor will I set the Magistrate’s Court order aside. 

13. Having regard to the court going on to assess the benefit to X having a meaningful relationship with both parents and the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, I will make some further orders and adjourn the proceedings until Friday 9 July 2021.

14. The parties will attend a Family Dispute Resolution Conference in the court convened by a Registrar and a Family Consultant at the earliest date upon which one can be made available and the parents notified. That should be on Monday or Tuesday of next week. If a Conference is not available at such short notice, I will make an alternative order for s11F Parent & Children’s Issues Assessment to be prepared next week with a report being available to the court by next Friday, delivered orally if necessary. A s11F assessment would have the advantage of the Family Consultant being able to interview X’s older sister, Y (14 years old) and report his/her impressions back to the court whereas the Family Dispute Resolution Conference is conducted on a privileged “without prejudice” basis.

15. I will ask the Secretary of the Department of Families Fairness & Housing (“DFF&H”) to provide a report and, in the interim, for the co-located worker to inform my Chambers of anything about the family known to the Department as soon as possible. I am particularly interested that the court be informed of allegations of violence because allegations of violence reported to a state authority will bring this case within the guidelines of Victoria Legal Aid for funding of an Independent Children’s Lawyer to represent the interests of both children. If my Chambers receive information from DFF&H about allegations of violence, I will make an ex parte order requesting the appointment of an Independent Children’s Lawyer in time for the Independent Children’s Lawyer to meet Y in the company of any Family Consultant who prepares the s11F report. As well, any Independent Children’s Lawyer is to give consideration to what temporary or interim parenting orders ought to be made next week.  The parents will each have liberty to apply to set aside any order requesting an Independent Children’s Lawyer on the next return date in consideration of not having been heard on whether I should request an Independent Children's Lawyer when the order was made.

16. For the avoidance of doubt I require each parent to be available to participate in the hearing next Friday with audio-visual connectivity.

17. I am assuming that the file will be complete and in order by the adjourned date.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       15 July 2021