C and W - [2003] FMCAfam 20

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & W

[2003] FMCAfam 20

FAMILY LAW – Ex parte recovery order against father for alleged over holding – application filed by father to vary final orders for residency and contact – final orders made less than 12 months prior to application to vary – no significant change in circumstances – final orders to remain in full force pending determination of application to vary those orders – no convincing evidence child endangered.

PRACTICE AND PROCEDURE – Ex parte application – inappropriate where other party on record with address for service of solicitor.

Family Law Act 1975, ss.62F(2), 65DA(2), 76Q, 117

Cowling v Cowling (1998) 22 Fam LR776

Applicant:

DLC

Respondent:

File No:

DGM 200 of 2002

Delivered on:

17 January 2003

Delivered at:

Dandenong

Hearing Dates:

16 and 17 January 2003

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr T. Moisidis

Solicitors for the Applicant:

Reale Lawyers

Solicitor for the Respondent:

Mr N.M. Eidelson

Solicitors for the Respondent:

Chris Woods & Associates

ORDERS

That the child J, born 23 November 1995, now be released into the custody, care and control of the mother, DLC.
That pursuant to section 62F(2), confidential counselling occur between the parties and that they confer with a counsellor at an appointed time of 9.15 am on 24 February 2003, with the counselling to occur with a counsellor nominated by the director of court counselling at the Dandenong registry of the Family Court of Australia in an endeavour to resolve the differences between them concerning the issue of residency and contact of the said child.
That liberty be granted to the parties to apply.
The application of the Applicant mother filed 16 January 2003 is otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGM 200 of 2002

DLC

Applicant

And

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This application filed by DLC (the mother) on 16 January 2003 was filed with the court as an ex parte urgent application, seeking a recovery order pursuant to section 76Q of the Family Law Act.
When the application was listed before me on 16 January 2003 as an ex parte matter, it became apparent when considering the file that there had also been an application filed by CW, (the father), on 10 January 2003. It was also apparent that the father had, by an application filed 19 January 2002, sought orders in relation to contact of the child of the relationship between the parties, J, born 23 November 1995 (the child).
When the matter was before the court on 4 March 2002, I made orders on that occasion, there being no appearance for the respondent mother, that the child reside with the respondent mother, that the mother have responsibility for decisions concerning both the day-to-day and long-term care, welfare and development of the child, and that the father have contact with the child.
Weekend contact is provided, and, relevantly for the present application, there is set out in paragraph 3(d) the following:
“During the summer school holidays, from 11 am New Year's Day until 15 January in 2003 and each alternate year thereafter.”
Those orders were made following, as I have indicated, an application by the father supported then by an affidavit sworn by him on 23 October 2001. In that affidavit, the father under the heading ‘Care of the Children’ in paragraph 6, reference is made to the question on the pro forma affidavit as follows:
“Are there any factors that might affect your or the other party's ability to provide a safe physical or emotional environment for the children?”
The father has inserted:
“Mother has psychiatric problems related to depression.”
Notwithstanding that reference in the affidavit, the orders were made, as indicated, by the court on 4 March 2002. Since that time, it has been the case that the child remained with the mother, who had, I understand, formed a relationship with another person, namely MCB. She had formed that relationship with Mr B from late 1997, with separation occurring on 24 December 2002. There is a child of that relationship, CLB, born 28 September 1999.
So that the proceedings are properly understood, it is clear from the material that when the current application, filed 16 January 2003, was filed by the mother, I was concerned that it was an ex parte application. I was concerned that it was issued by registry as an ex parte application. In my view, ex parte proceedings are proceedings which should only be taken in those circumstances where it is not possible, or indeed appropriate, for the other party to attend. This is a fundamental and critical feature of our system of justice, that parties to applications have a right to attend court, to be present and be heard.
It is in the context of that concern that I made arrangements for the solicitors for the father on record, who had issued an application as recently as 10 January 2003, to be notified of the ex parte application of the mother and after that notification, to their credit, within a short period of time and Mr W, a solicitor attended the court and was heard. It was on the basis of his attendance that the matter was then adjourned to this day.
The mother in support of her application has relied upon two affidavits. The first is an affidavit sworn by her on 10 January 2003. The second is an affidavit sworn 16 January 2003. The father in this application has relied on the fact that he has already made the application to which I have referred, filed 10 January 2003, seeking effectively to discharge orders made earlier by the court on 4 March 2002 and in lieu thereof, he seeks orders for residency of the child; that is, that the child live with the father and that contact with the mother be reserved.
Reliance was placed by the father on that application and the affidavit filed in support sworn by the father on 10 January 2003. The father has also relied upon an affidavit filed this day, sworn by him on 17 January 2003, which has annexed to it as exhibit A an affidavit sworn by MCB on 16 January 2003, in proceedings which I take it have yet to be commenced by Mr B. I should indicate here that Mr B, in his affidavit, refers to the relationship with the mother, and the child of that relationship. He makes various assertions about the conduct of the mother.
It is said for and on behalf of the father that in the circumstances of the present case, I should adjourn this application for a period of one week, to enable a subpoena issued by the father's solicitors on 16 January 2001 to the Department of Human Services to be the subject of a response, so that at least the court would have before it certain information which may or may not be available from that file, which may or may not be relevant to the consideration of the issues before this court.
That application for adjournment is opposed, and the orders now sought by the mother are that the child who was the subject of an interim order yesterday should now be released into her care, and that the orders of 4 March 2002 continue, with the father's application filed 10 January 2003, returnable 24 February 2003, to take its normal course.
I should also note that, coincidentally, an error was made by the court in that a mediation session has been fixed in the father's application and a time allocated for that mediation at 9.15 am on 24 February 2003.
For the sake of completeness, I indicate that when the matter was before me on 16 January 2003, apart from accepting the request by the father's solicitors for an adjournment to today, I also made an order that the father deliver the child to the child-minding centre of the Family Court of Australia in Dandenong by 1.45 pm this day. That has occurred.
It is clear in the material before me that in an application of this kind, which has a degree of urgency, I need to do the best I can on the available material. It is also clear to me that, although both parties seem to have had what might be described as problems in communicating current addresses, and I accept that both parties are concerned about the location of the other - that is, that the mother in making her ex parte application was concerned in relation to the whereabouts of the father, who likewise, having regard to the recent separation between the mother and her partner, Mr B, was concerned about her whereabouts, but in the circumstances, it is not surprising that there has been what I can only describe as a flurry of activity in terms of proceedings.
It ought to be noted, however, that the mother, until today, appears to have at least been unrepresented; certainly in relation to her application issued yesterday.
In all the circumstances, I do not think it assists the process to attribute blame or otherwise be critical of the conduct of either party in bringing this matter before the court. I accept for the present purposes that the solicitors acting for and on behalf of the father have acted with due diligence in relation to bringing the father’s application before the court.
I further accept, on the affidavit material, that at the very least there was material, albeit of a hearsay nature, which may have led to the father having sincere concerns about the welfare of the child, and in particular I note that what is asserted on behalf of the father as a primary concern is the lack of a permanent fixed abode for the mother, a concern about what might be significant matters on the file of the Department of Human Services, and otherwise a concern about those matters referred to in the affidavit of MCB.
It is clear to me that in a case of this kind, where orders were made, as I have indicated, on 4 March 2002, where it was clear on the affidavit material supporting the application, which was the basis of those orders, that there had been, at least in the past, some concern about the mental health of the mother, that the court is entitled to take into account that at least as at 4 March 2002, and up to and including the date when separation occurred between the mother and Mr B on 24 December 2002, the mother continued to be, pursuant to the order and indeed prior to that, the primary care-giver of the child to whom this order applies.
It is equally clear and not in contention that throughout the time of both the relationship between the mother and the father and the period of time after that relationship broke down, and the relationship then shortly after formed with Mr B, that the mother continued to be the primary carer, at least of the child of the relationship between the mother and father before this court, and that there were at least insufficient concerns up until December last year on the part of the father which would lead to any action. It does appear that since at least that date – and indeed the mere fact of the separation and the need for the mother to find alternative accommodation has led to the current concern being expressed by the father.
When considering a matter of this kind, I have been reminded by both counsel that I should have regard to the decision of the Full Court of the Family Court in the matter of Cowling v Cowling (1998) 22 Fam LR776, an often-cited decision, and in particular the extract which appears from the court's decision at 779 up to 782. It seems to me particularly relevant in this case, where I should not only have regard, of course, to the best interests of the child as the paramount consideration and the issue of stability, but in particular a third element identified by the court is important. The court in that case said:
“…where the evidence clearly establishes that at the date of hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include, but are not limited to, convincing proof that the child's welfare would be really endangered by his/her remaining in that environment.”
In the present case, it is clear that what has occurred is that the child, contrary to the order made by the court on 4 March 2002 – and that order, of course, was made with the usual proviso that the obligations of the parties under section 65DA(2) of the Family Law Act applied – instead of being returned on 15 January in accordance with those orders, the child has remained with the father. It is clear then, to some extent, that there has been a continuation of at least contact with the father since the commencement of that contact period.
However, what is asserted on behalf of the mother is that, despite her lack of permanent residence, she is currently residing with a close friend at B S Road, F. She has deposed in her affidavit that the child and her can stay at that residence as long as is required before permanent housing is allocated to her.
The issue then of danger to the child seems to be in this case, on the affidavit material currently before the court, more a case of inference to be drawn from the reference to human rights and the reference to the affidavit relied upon by the father and sworn by Mr B. Otherwise, it seems to me on the material that there is a past psychiatric history of the mother which at least was known to the father prior to the orders being made on 4 March 2002.
There is no evidence to suggest that since 24 December 2002 there has been necessarily a change in that psychiatric condition of the mother, though there is clear evidence which is common to both parties that she has changed residence from the residence she occupied with Mr B, which in her affidavit she indicates may be the subject of an intervention order. She then moved to an aunt's place for a short period of time and then moved to her current residence. So obviously there has been some uncertainty and instability to that extent in the last few weeks.
Considering all the evidence that's currently before me, however, in my view there is insufficient evidence which would provide me an opportunity to conclude that there is what might be described as convincing evidence that the child is endangered or would be endangered by continuing to reside with the mother in accordance with the order made by the court on 4 March 2002.
I am not satisfied on the material before me that there is sufficient convincing material which would satisfy me that there is an immediate risk. This matter in my view should be allowed to return to the court on 24 February 2003. In my view it is appropriate that the parties should attend counselling on that morning and take the opportunity to use the appointment, inadvertently already made for the parties, to endeavour to resolve their differences concerning the child.
The orders otherwise which were made on 4 March 2002 in my view should remain in place. That means that on 24 February 2003 there will be an opportunity for subpoenaed material from the Department of Human Services to be properly and carefully considered. There will be an opportunity for the parties to discuss the matter and an opportunity in the meantime for those orders made as recently as 4 March 2002 to remain in full force and effect.
In those circumstances the only orders of the court that are now required in my view are as follows:
(1)That the child J, born 23 November 1995, now be released into the custody, care and control of the mother, DLC.
(2)That pursuant to section 62F(2), confidential counselling occur between the parties and that they confer with a counsellor at an appointed time of 9.15 am on 24 February 2003, with the counselling to occur with a counsellor nominated by the director of court counselling at the Dandenong registry of the Family Court of Australia in an endeavour to resolve the differences between them concerning the issue of residency and contact of the said child.
(3)That liberty be granted to the parties to apply.
(4)That the application of the Applicant mother filed 16 January 2003 is otherwise dismissed.

Costs

In this matter application has been made by counsel for the mother for an order for costs. Each party normally would bear their own costs. The court has to be satisfied that in the circumstances it would otherwise be just to make an order for costs (see s.117 Family Law Act1975). In my view, and in regard to the reasons for decision that I have just delivered, it is clear that both parties have acted in a way which might be regarded as reasonable and have been accommodated in various ways by the registry of the court. As I have indicated, it was perhaps inappropriate that the mother's application issued as an ex parte application and it was perhaps unfortunate that the application of the father was not an application which was subject to an abridgment of time.
In any event, I am satisfied that both parties have properly brought the matter before the court. I have granted to both parties liberty to apply in circumstances where, should anything else arise of a nature which could properly be described as urgent relating to the welfare of the child, then that matter can be brought before the court. For those reasons it is not appropriate in my view to make any order for costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 17 January 2003