Calhoun and Fortescue - [2006] FMCAfam 511

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CALHOUN & FORTESCUE

[2006] FMCAfam 511

FAMILY LAW – Children – interim parenting arrangements.

Family Law Act 1975 (Cth)

Cowling (1998) FLC 92-801
Sillars (1986) FLC 91-756

Applicant:

MS CALHOUN

Respondent:

MR FORTESCUE

File number:

MLM 7875 of 2006

Judgment of:

Walters FM

Hearing date:

18 September 2006

Date of last submission:

18 September 2006

Delivered at:

Melbourne

Delivered on:

18 September 2006

REPRESENTATION

Counsel for the Applicant:

Ms B A Tulloch

Solicitors for the Applicant:

Rowe Lawyers

Counsel for the Respondent:

Mr K F Nicholson

Solicitors for the Respondent:

Whyte Just & Moore

ORDERS

Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the children [X] born in 1997 and [Y] born in 2004 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
Pursuant to s.62G(2) of the Family Law Act1975, the parties and the said children attend upon a Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia, for the purposes of the preparation of a Family Report to be given to the Court prior to

15 December 2006, such Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those views);
(b)the matters set out in ss.60CC, 61DA and 65DA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare of best interests of the said children.
The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.
Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;
(b)all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and
(c)any intervention or restraining orders currently in force.
If a party is not represented by a solicitor, then within 7 days of being notified of the Consultant that party do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the within proceedings;
(b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the within proceedings; and
(c)any intervention or restraining orders currently in force.
The matter be adjourned to 22 February 2007 at 10.00 a.m. for final hearing (with an estimated hearing time of 2 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The mother do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the trial.
The father do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial.
The independent children’s lawyer do file and serve all further affidavits and other material to be relied upon by not later than 7 days prior to the trial.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the commencement of the trial.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
There otherwise be orders, by consent, in terms of the Minute of Orders & Directions signed by or on behalf of the parties and dated

18 September 2006
(“the Minute”).

IT IS DIRECTED THAT:

The Minute be placed upon the court file.
The solicitors for the father do engross the Minute and deliver a clean, duly certified copy of the same (“the Copy”) to the Registry of this court within 7 days.
Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.

AND THE COURT NOTES THAT:

In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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 Calhoun & Fortescue is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 7875 of 2006

MS CALHOUN

Applicant

And

MR FORTESCUE

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Before the court are competing applications relating to the best interests of the children, [X] and [Y]. [X] was born in 1997, and [Y] was born in 2004. I do not propose ─ in these brief ex tempore reasons ─ to review the formal history of the parties' relationship, but I do want to make reference at this stage to the importance that the Family Law Act, as amended since 1 July, attaches to allegations of family violence.
The subject is dealt with in many provisions of the Family Law Act. For example, in section 60CC (which is the section dealing with the manner in which a court determines might be in a child's best interests), the court is directed to consider, as a primary consideration, the need to protect a child from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence.
In section 60CG, the court is directed ─ to the extent that it is possible for it to do so, consistently with the child's best interests being the paramount consideration ─ to ensure that any order that it makes is consistent with any extant family violence order, and does not expose a person to an unacceptable risk of family violence.
There are, of course, other provisions of the Family Law Act (such as section 60K) dealing with family violence, and other sections which direct the court's attention to intervention orders or the like, and which require the court to have regard to those orders in the making of any further orders.
The bottom line, however, is that although the Family Court and this Court are very formally directed to take these factors into account, the best interests of the children remain the paramount consideration. There cannot be any automatic right answer as to what might be in children's best interests, and all relevant factors (to the extent that the court is able to identify them) must be taken into account.
The starting point in this case, it seems to me, is that on 17 August 2005, some 12 months ago, these parties entered into detailed consent orders dealing with arrangements for the care of their two children. The arrangement put in place is not a simple or straightforward one. It would appear from the material filed on behalf of the parties that it was adopted because, amongst other things, the mother had certain health issues, and because it would be necessary for the father to assume the care of the children from time to time.
If I use the expressions "husband" and "wife" in these (ex tempore) reasons, then it is by oversight. I mean "father" and "mother". The court can also observe the behaviour of parties in the courtroom, and their ability to control themselves in such an environment, and might be minded to draw a conclusion to the effect that if a party cannot hold his or her tongue in a courtroom, then that party may not be able to do so in a much less structured and formal environment.
The court draws no adverse inferences against the mother as a result of her medical condition. What this court must do is look at certain aspects of the history of the matter on the basis of the parties' behaviour and in accordance with settled law. The mother makes a number of allegations in her principal affidavit regarding the father's behaviour. For example, in paragraph 12 she asserts that there is a long history of the father being abusive towards and controlling of her. She asserts that he subjected her to abuse (of both a physical and emotional kind) throughout the relationship.
She says in that same paragraph that that form of behaviour has continued since final separation, because she has been too frightened to stand up to the father. She says that, since final separation, the father has regularly turned up at her house whenever he pleases, and has made himself at home generally. She also describes certain behaviour of the father that has occurred, she says, at times when the children were present.
She says (amongst other things) that the father often “runs her down”, and calls her names. She says that on one occasion he grabbed her arm and swung her around, thereby bruising her arm. She says that incident occurred in May 2006. She asserts throughout her affidavit that she is fearful of the father, and wary of his behaviour towards her.
The fact remains, however, that, some 12 months ago consent orders were made dealing with the arrangements for the care of these two children. It is clear beyond argument that, at the time those orders were made, the mother well knew the father's character and personality, and his propensity for the sort of behaviour that she describes in her affidavit.
For his part, the father denies the allegations that the mother makes against him. It is simply not possible in proceedings such as these, which are interim proceedings, to conclude that one party or the other is telling the truth. It is possible, of course, that neither party is telling the whole truth, or that there is some truth in what each of them says.
In paragraph 14 of her affidavit, the mother commences the story of the events that she says led to the termination of the shared care arrangements that existed for these children until very recently. The mother says that, in or about April 2006, [X] was hit repeatedly by the father. She describes the type of assault that, according to the mother, the father perpetrated upon [X]. The allegation is a “bare” allegation; in other words, the source of the allegation is not identified. I do not know, therefore, whether the allegation was made by [X] herself, or by somebody else on her behalf.
What is clear, however, is that the mother has made every effort to involve the Department of Human Services (DHS) in her criticism of the father, and in relation to the concerns that she has raised regarding the welfare of her children. DHS has taken such steps as it considers appropriate to satisfy itself as to the welfare of the children. The bottom line, like it or not, is that DHS has reached the conclusion that it is not prepared to intervene.
The mother says in paragraph 15 of her affidavit that DHS remained involved with the family until about a week ago. The mother then says, amongst other things, that efforts were made by DHS to talk to [X] about her concerns. [X] did not cooperate, and it seems to be the mother's interpretation of events that because [X] did not cooperate, DHS was unable to take the matter further. Of course, there might have been many other reasons why DHS reached the conclusion that it did, but I am not privy to those reasons. I can only make a decision on the material before me, and on the appropriate application of the law as I understand it to be.
The mother raises a number of issues regarding [X] and her alleged fear of the father. For example, in paragraph 16 the mother says that:
[X] has made it clear to me on many occasions over the last few years that she is scared of the father.
Notwithstanding that fact, the mother consented to orders in August 2005, which Orders had the effect of putting in place a shared care arrangement. Either the mother did not act protectively at that time or (perhaps) the mother is exaggerating. Perhaps ─ as the mother would have the court conclude ─ there were other reasons why she consented to the orders in August 2005. Again, I cannot know the whole truth at this stage of the proceedings.
In paragraph 17 of her affidavit the mother deposes as follows:
Approximately a week or so ago, the department advised me that they would not be continuing their involvement as they were satisfied that the father was no longer physically disciplining the children. The department told me that because they had been unable to get any information from [X] which would cause them to believe she was unsafe in the father's care and which would cause them to believe [X] was scared of the father, there was nothing further they could do. [X] had continued to refuse, throughout the department's involvement, to open up and talk about her feelings and her wishes.
What the mother does in that paragraph is to starkly highlight the difference between her version of events and that of the father (and, ultimately, DHS). The mother says that [X] has made allegations, DHS says (in essence) that she has not; or at least, not to it.
In paragraph 18 the mother continues:
Once I was informed that the department were not going to be continuing their involvement I became very worried for the children's safety during times with their father. I was particularly worried for [X], as she had told me clearly on many occasions that she was scared of the father. I was worried for [X]'s physical safety in light of the beating her father had given her back in April 2006.
DHS had already involved itself, to some extent, with the family in April 2006, and had dealt with the father in relation to the issue of physical discipline. That is the situation on the mother's own evidence. The mother continues in paragraph 18:
I was also worried because for a long time now she has been quiet and reserved, and whenever she stays with me she refuses to sleep in her own bed. She has also told me that she does not like having the lights off at night.
In paragraph 22 of her affidavit the mother says that on Friday, 1 September ─ which was only a week or so after DHS’s involvement had ceased ─ she went to the home of the father with a friend to collect the children, as they were due to return to her care. She says that, as she turned into the father's street, she and her friend saw the children playing on the footpath in front of the father's house. She says that the children were unsupervised and that, as she and her friend pulled up, one of the children ran out onto the road. The affidavit continues:
After I collected the children, my friend expressed to me her concerns that the children had been left unsupervised in the street. My friend told me that she felt obliged to contact the department and advise them of what she had observed. I understand that my friend then made contact with the department in relation to this matter on or about Friday, 1 September 2006.
It seems clear from that passage that the mother's decision to terminate the shared care arrangement was already in train at that time. But it also seems clear that the instigator of the complaint ─ if I can call it that ─ to DHS was not the mother, but her friend. It appears that the mother did not seem sufficiently concerned by what she saw on that day to herself make contact with DHS. It follows that the criticism of the father in paragraph 22 is not “direct” criticism but, if you like, in the form of an allegation placed into the mouth of another person. The father, for his part, denies the mother’s version of this event, and says that it is distorted. For the purposes of these reasons, however, I have focused principally on the mother's evidence.
In paragraph 26, and after the mother put into train the steps that she did to terminate the shared care arrangement, the mother says that ─ with the assistance of a support worker ─ she attended at the Geelong Magistrates' Court to apply for an intervention order against the father. As I said to Mr Nicholson (Counsel for the father) during the course of submissions, it is quite clear, in my view, that the mother's application was a prophylactic measure. She anticipated that problems would arise following her decision (on a unilateral basis) to terminate the shared care arrangement, and she wanted to endeavour to protect herself ─ and perhaps the children ─ from the consequences of her own actions.
The grounds relied upon in the application for the intervention order are important. The application (or perhaps I should say the Complaint and Summons) is attached to the mother's affidavit. Under the heading "State briefly why an intervention order is needed. Give a brief outline of each incident, including the date and place where it happened" is recorded the following:
About two weeks ago he attended at my house uninvited, refused to leave. He pushed me. In April I had bruising to my arms and saw a doctor. He is constantly verbally abusive and screams and yells at me. He threatens to take the children. In approximately 2002 I spent three days in hospital with concussion after being assaulted by [Mr Fortescue]. He regularly just turns up at my house, swearing and expecting money from me. I am in fear such incidents will reoccur because has always behaved like this and I am very afraid of him. I have been too afraid of him to have taken any action previously and I am really scared of what he will do now. In April of this year, [Mr Fortescue] hit [X]. Child Protection involved. [X] is very afraid of him still. [Y] cries and doesn't want to leave me when he is supposed to go to [Mr Fortescue]. On Thursday, both children were playing on the road and were almost hit by a car when I went to get them
The inconsistencies between the statement that I have just quoted from the Complaint and Summons for an Intervention Order, and the material contained in the lengthy affidavit filed on behalf of the mother, are many, and are unexplained. Indeed, in the mother's affidavit it is almost impossible to identify why the mother is concerned about [Y] being in the care of the father, other than the one incident where she alleges that he ([Y]) may not have been adequately supervised on the day that it would appear that she and her friend were going to take the child (and retain him from that point onwards).
As to why the order was granted by the State Magistrates Court in those circumstances, I do not know. It is clear from the complaint that no adequate mention is made of the fact that these parties entered into consent orders some 12 months ago relating to shared care of the children. Although mention is made of an order made on 17 August 2005, no further explanation is given in the Complaint and Summons. In addition, no comment is made to the effect that DHS intervention had been terminated because of [X]'s reluctance to cooperate in the process.

There is some disagreement amongst various judicial officers as to the law now to be applied in considering orders to be made relating to children on an interim basis. Some judicial officers are of the view that the earlier decision of the Full Court in Cowling (1998) FLC 92-801 continues to apply. Other judicial officers are less confident. My own view is that Cowling provides an important set of guidelines to be adopted by a court in cases such as that now before me. Cowling has yet to be modified or over-ruled by the Full Court.
The relevant passages in Cowling are those contained in paragraphs 18 through to 25. In paragraph 18, the Full Court emphasises the need for courts, at interim hearings such as this one, to be extremely cautious. The Full Court said:
The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long‑term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves the consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process, where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily at interim hearings, the court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future. In some cases it may also be necessary to consider child protection issues.
Clearly, the need to consider child protection issues, as that term is used in Cowling, is heavily emphasised by the amendments to the Family Law Act to which I referred earlier in these Reasons. The court is required to place considerable weight upon such matters. But in this case, DHS has spoken. The position is that DHS has investigated the mother’s concerns and has concluded that ─ at least at the current time ─ it is not prepared to take the matter further.
The result of that, on the mother's own case, is that she took the law into her own hands. That might very occasionally be warranted in situations of exceptional gravity, and where the welfare of children is obviously at risk. But as the Full Court said in Sillars (1986) FLC 91-756, “…those who exercise self help must accept the consequence that a Court will almost always doubt their bona fides”. Still, I accept that the mother has brought the matter to the attention of the court without any significant delay. It would appear from the mother’s affidavit, however, that, had DHS continued its involvement, then the likelihood is that she would not have removed the children from the care of the father.
The Full Court in Cowling continued as follows:
The relevant criteria for determination of interim proceedings for residence and contact ─
as they used to be called ─
are the following: firstly, of course, the best interests of the children must be regarded as the paramount consideration.
Whilst I understand (and do not ignore) the allegations that the mother makes regarding the father's behaviour towards [X], and the allegation that [X] is afraid of the father, the fact of the matter is that there is precious little presented by the mother as to concerns that might exist regarding the father's care of or relationship with [Y].
I pause to say that I have uppermost in my mind the best interests of these two children. But I must approach the matter according to law, and not in some idiosyncratic fashion that is inconsistent with the law and the reported cases.
In paragraphs 21 and 22 of Cowling, the Full Court said:
Given the mode by which interlocutory proceedings are conducted, those interests (that is the best interests of the children) will normally best be met by ensuring stability in the life of the child, pending the full hearing of all relevant issues. Accordingly, as a general rule, an interlocutory order made should promote that stability.
Where the evidence clearly establishes that at the date of the 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 or her remaining in that environment.
Those two paragraphs, and the subsequent paragraph (paragraph 23), direct the court to look at the pre-existing status quo; in other words, the arrangements that adhered before they were changed in some way which gave rise to the commencement of proceedings (and the need for the determination of interim applications).
In this case, the status quo includes the facts that the parties had entered into consent orders and that arrangements for the care of the children had been in accordance with those orders from, as I am advised, well before the making of those orders, and up to the beginning of this month.
In paragraph 23 of Cowling, the Full Court said:
The court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the court to take account of the circumstances giving rise to the current status quo.
If one looks at the current status quo as being the arrangement that has adhered for the last few weeks, then it is a situation in which the children are living with their mother and having no contact with their father. The circumstances which gave rise to that arrangement are that the mother conducted herself in the manner described in her affidavit. In other words, she carefully planned steps that involved removing the children from the care of the father and the obtaining of an interim intervention order.
Whether or not she was justified in taking those steps, I cannot say ─ because this is not a final hearing, and I do not have before me the evidence that will allow me to reach a reasonable conclusion one way or the other. It might well be that, at the end of the day, the mother will be found to have acted perfectly appropriately. But I cannot reach that conclusion on the evidence now before me. Similarly, it may ultimately be the case that the court will conclude that the father has behaved in the way that the mother has said that he behaved. I do not know. But what is clear is that the current arrangements, (namely, that the children live in a place of hiding with their mother, and that they have no contact with their father), have not come about by virtue of an agreement between the parties, or as the result of acquiescence. The arrangements have been unilaterally imposed upon the father by the mother, and they are of short duration.
Conversely, of course, the arrangements described in the consent orders from 12 months ago arose as a result of an agreement between the parties. They were acquiesced to by the mother, even if she had some discomfort at the time of the making of the orders. It would appear that the orders were not unilaterally imposed by one party upon the other, and, as I understand the evidence before me, the arrangements described in the orders had continued for some years before the making of the orders. But, even if they had not, the arrangements certainly continued from the time that the orders were made until the beginning of this month.
The remaining matters referred to in the Cowling decision direct the court to consider, in essence, the principles made significant by the sections of the Family Law Act relating to the best interests of children. Section 60CC of the Family Law Act says that the primary considerations for the court to take into account in determining a child's best interests ─ no doubt on an interim and a final basis ─ are, firstly, the benefit to the child of having a meaningful relationship with both of the child's parents and, secondly, the need to protect the child from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.
This is a case which brings those two primary considerations into stark contrast. The effect of the mother's actions was, at least on an interim basis, to totally terminate any form of meaningful relationship between the father and his children. On the other hand, the mother says in her material that she has acted in that way in order to protect the children from the sorts of concerns described in section 60CC(2)(b).
There are a number of other factors listed as additional considerations in section 60CC(3). Suffice it to say that I am aware of those factors, but in the present case the bottom line is that ─ to use the Cowling terminology ─ there certainly does not exist convincing proof that either child's welfare would be really endangered if the consent orders were to continue to adhere until this matter were to be further investigated.
There are indications from the affidavit material before the Court that the father's behaviour might be as the mother has described it, but there is no convincing proof that that is the case and, of course, the intervention order has itself only been made on an interim basis. It is certainly contested.
In all the circumstances, I am of the view that the court must ensure that the orders that these parties consented to a year ago are put back into effect, pending the further determination of the matter. An independent children's lawyer should be appointed, but in the meantime the shared care arrangement should resume. I will stand the matter down to enable appropriate orders to be drafted to give effect to the decision that I have reached.
I emphasise that the decision that I have made does not mean that I wholly accept either party's evidence or allegations. I do not know where the truth lies. But the direction that the court has been obliged to take is clear from the authorities. In my view, it is also clear from a fair and proper application of the provisions of the Family Law Act, including the amendments. I most certainly have taken into account the existence of the intervention order, but I am cognisant of the allegations contained within it and I am cognisant of the manner in which it was obtained and the fact that it is defended. I regard the best interests of these children as the paramount consideration, and I have concluded that they should be returned to their father as quickly as possible, so that the previously existing arrangements can resume.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Suzette De La Motte

Date: 17 October 2006