CARTER & GEARY

[2016] FamCA 90

FAMILY COURT OF AUSTRALIA

CARTER & GEARY [2016] FamCA 90

FAMILY LAW – PRACTICE & PROCEDURE – Where final parenting orders were made in November 2015 after the mother disengaged from the litigation and advised the Court she would not contest the proceedings – Where those orders provided for the child to move to live with the father and for him to have sole parental responsibility for her

FAMILY LAW – CHILDREN – Interlocutory Application – Where the child subsequently absconded from the father – Where the father sought a recovery order – Where the mother sought new interim orders for the child to live with her – Best interests – Where there was no dispute that the child has a meaningful relationship with both parents – Child’s wishes – Where the current circumstances were predicted and taken into account when the final orders were made and there is no valid reason for those orders to be disturbed – Parental Responsibility – Where the presumption of equal shared parental responsibility should not apply – Father to continue to have exclusive parental responsibility – Where the father’s application for a recovery order is granted – Where the mother’s interim application is dismissed

FAMILY LAW – PROPERTY – Where the mother sought to vacate the upcoming property settlement trial if her interim parenting application failed – Where the trial should not be vacated

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61C, 61DA, 65AA, 65DAA, 65D, 75, 79, 79A

APPLICANT: Ms Carter

RESPONDENT: Mr Geary

FILE NUMBER: NCC 1148 of 2014

DATE DELIVERED: 8 February 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rugendyke

SOLICITOR FOR THE APPLICANT: Attwaters

COUNSEL FOR THE RESPONDENT: Mr Levick

SOLICITOR FOR THE RESPONDENT: Braye Cragg Solicitors

Orders

1. This recovery order is addressed to the Marshal, all officers of the Australian Federal Police, and all officers of the State and Territory police services.

1. The persons to whom this recovery order is addressed are authorised and directed to find and recover B, born … 2003, and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found (including C Street, Suburb D, NSW).

2. Upon recovery, the child is to be delivered to the father, Mr Geary of E Street, Newcastle NSW.

3. These orders will remain in force for 1 month from the date of these orders.

1. Save as to costs:

a.The Application in a Case filed on 2 February 2016 is dismissed;

b.The application for interim orders contained within the Amended Initiating Application filed on 4 February 2016 is dismissed; and

c.Any and all outstanding applications for interims orders are dismissed.

1. The mother’s application for final parenting orders contained within the Amended Initiating Application filed on 4 February 2016 is referred to the Registrar for further procedural orders.

BY CONSENT, IT IS FURTHER ORDERED THAT

1. The time for compliance with Order 7 made on 9 November 2015 is extended to Tuesday, 9 February 2016.

1. Leave is granted to the parties to file and serve a supplementary affidavit by Wednesday, 17 February 2016, such affidavits to be confined to parenting arrangements pertaining to the parties’ child from 29 January 2016.

2. The father’s costs of and incidental to this interim hearing are adjourned to the final hearing of the parties property settlement applications commencing on
   22 February 2016.

NOTATIONS

A.The parenting orders made on 10 November 2015 continue to operate.

B.The trial of the parties’ applications for relief under Part VIII of the Family Law Act remains listed to commence on Monday, 22 February 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Geary 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 NEWCASTLE

FILE NUMBER: NCC 1148  of 2014

Ms Carter

Applicant

And

Mr Geary

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 10 November 2015, this Court made final parenting orders in respect of the only child of the parties.  The child was born in 2003 and she is now 12 years of age. 

2. The litigation between the parties was fixed for final trial of their parenting applications in November 2015.  The mother disengaged from the litigation about one month before by failing to comply with procedural orders ensuring her readiness for trial, even though she was then the residential parent.  She filed a Notice of Discontinuance on 7 October 2015.

3. On the first day of trial in November 2015, the mother's solicitor informed the court that she would not contest the proceedings and would not require the publication of any reasons for the parenting orders made in her absence.  She did so in full knowledge that both the father and Independent Children's Lawyer were pursuing final orders that would reverse the child's residence and have her live with the father.

4. Final parenting orders were therefore made on 10 November 2015, providing for the child to live with the father and for the father to have sole parental responsibility for her.  The orders provided for the child to spend time and communicate with the mother on a graduating basis, following an initial embargo period of three months. 

5. Significantly, the Court noted the agreement between the father and Independent Children's Lawyer that the father would engage a therapist to support the child and both parents in the transition of the child's care arrangements. It is uncontroversial the father did retain the therapist within a week or so of the child moving into his residential care.  He and the child participated in the therapy but, despite the father's requests, the mother has not done so. 

6. In late January 2016, the child went to the mother's home and has since refused to return to the father's home.  She professes a willingness to visit the father, but only on condition that he consents to her future residence with the mother.  The mother is acquiescent to the child's position, so the father has been at a standoff with the mother and the child for about the last 10 days.

7. Those facts brought about two reactions from the parties.  First, the father filed an Application in a Case on 2 February 2016, seeking a recovery order in respect of the child.  Secondly, the mother filed a document entitled Amended Initiating Application on 4 February 2016, through which she now wishes to re-contest the final parenting orders made in November 2015. 

8. However, of more immediate relevance, is the mother’s application to suspend the parenting orders made in November 2015, replace them with new interim orders providing for the child to live with her and spend time with the father, and to vacate the trial fixed for 22 February 2016 to determine the parties' competing property settlement applications.  Although the mother's application to vacate the property settlement trial was supplementary to her application for amended interim parenting orders, it was made clear in submissions that her application to vacate the upcoming trial was only pressed if her interim parenting application failed.

Applications and evidence

1. The father sought the orders set out in his Application in a Case filed on

   
   

   2 February 2016, in support of which he relied upon:

   (a)His affidavit filed on 2 February 2016; and

   (b)Paragraphs 122-129 inclusive of the Family Report dated 6 August 2015, which was the Family Report prepared for the final trial of the parenting applications in November 2015.

2. The mother sought the interim orders set out in her Amended Initiating Application filed on 4 February 2016 (subject to the clarification just mentioned), in support of which she relied upon her affidavit filed on 4 February 2016. 

3. I intend to address the parenting dispute first, followed by the application to vacate the upcoming trial of the parties' property settlement applications.

Parenting

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. When invited to make a parenting order, the court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).  When making parenting orders, the court is mandated to regard the child's best interests as the paramount consideration

   
   

   (ss 60CA, 65AA). The Act specifies with precision the criteria which the court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

3. The court is required to apply a rebuttable presumption that a child's best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA(1)), though that presumption may either not apply or be rebutted in certain circumstances (ss 61DA(2), 61DA(4)).  In the event an order is made allocating equal shared parental responsibility to the child's parents, either presumptively or otherwise, the court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents or, alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

4. If parental responsibility for the child is allocated in some other way, then the court's discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child's best interests being the paramount consideration. 

5. The provisions of s 60CC of the Act were not individually addressed by counsel who appeared for the parties, though submissions by both of them touched upon some of those considerations.

6. Beginning with the presumption of equal shared parental responsibility, it is instructive to note that neither party had an explicit proposal for the allocation of parental responsibility. The father's proposal was implicit from his desire to maintain operation of the final parenting orders made in November 2015, which made provision for him to have exclusive parental responsibility for the child. The mother's proposal, however, did not even implicitly address the issue of parental responsibility. She sought another reversal of the child's residence but made no proposal for the allocation of parental responsibility. The suspension of the orders made in November 2015, as proposed by the mother, would thereby simply leave in existence the parental responsibility enjoyed by both parents for the child pursuant to provisions of the Act (s 61C). If that were the case, the mother was certainly not advocating for the allocation of equal shared parental responsibility.

7. I am not satisfied, having regard to the evidence that has been adduced, that the presumption of equal shared parental responsibility should apply.  Final orders were made in November 2015 allocating parental responsibility for the child exclusively to the father.  I see no reason for any change. It would not be appropriate in the circumstances for the presumption of equal shared parental responsibility to be applied (s 61DA(3)).  The parties clearly remain at issue about the final future parenting arrangements for the child, and neither currently proposes that equal shared parental responsibility be allocated for her, either on an interim or final basis.

8. I turn therefore to the considerations set out within s 60CC of the Act.

9. First, there was no dispute that the child has a meaningful relationship with both parents, from which she does, or is at least liable to, derive benefit

   
   

   (s 60CC(2)(a)).  The father recognises the importance of the mother in the child's life, as does the mother recognise the importance of the father in the child's life.  The mother's proposal for change still envisages that the child would spend four nights in each fortnight with the father. It follows that each party regards the other as a sufficiently competent parent to play a significant future role in the child's life. 

10. No submission was made by either party about the engagement of s 60CC(2)(b) in these proceedings.

11. I therefore move to consider s 60CC(3) of the Act, but very few of the factors prescribed by that provision were engaged by the parties’ submissions.

12. The most important of those to the mother is the child's clear wishes.  There is no doubt the child clearly expresses her wish directly to both parents to live with the mother and to spend time with the father.  However, those clear wishes need to be seen in context.  At 12 years of age, she barely has the maturity to understand the mid to long term implications of her current desire.

13. The evidence of the Family Consultant was to the following effect:

    (a)The case was a "really good example of the parental alienation process" (at [122] of the Family Report).  The Family Consultant considered the mother's conduct tended to alienate the child from the father.  While the child had not yet totally rejected the father at the time of that observation, she was on the way to doing so;

    (b)

    The counsellor to whom the mother had taken the child was apparently "ill‑equipped" to assist the child overcome the alienation process

    
    

    (at [123] of the Family Report);

    (c)If the child remained living with the mother "the projected outcome for [her] is for a further deterioration in her relationship with her father"  (at [124] of the Family Report);

    (d)If the child was moved to live with the father "it is highly likely that the parenting arrangement will fail and the matter will be back before the Court in due course"  (at [125] of the Family Report); and

    (e)The "only option left to explore" was one in which "the child is subjected to a change of residence to that of the father, in combination with support and counselling from a suitably qualified and experienced therapist" (at [127] of the Family Report).

14. The father did engage a "suitably qualified and experienced therapist" very shortly after the child moved to live with him, pursuant to the orders made in November 2015.  The first therapy session attended by both the father and the child, occurred on 24 November 2015.  The father has since followed the advice of that therapist.  In the knowledge the child might abscond from the father, the therapist informed the father:

    [The child] must realise that the law and adults must be respected and that a therapeutic process must be included.  The best result would be if [the mother] was “on board” with such a therapeutic process. [The child] must realise how complex and serious Court decisions are and that she shouldn’t end up getting the message that she can basically direct the result.  This would be potentially very negative for her future relationships and views on how conflicts are resolved.

15. As foreseen by the Family Consultant (at [125] of the Family Report), the new parenting regime did fail.  The child absconded from the father and the dispute is back before the Court. 

16. The mother’s attempt to re-contest the proceedings is seemingly premised on an asserted change of circumstances, namely, that the child has absconded from the father and now unequivocally expresses her clear desire to live with the mother and, since she has the capacity to continue absconding, the Court and the parties should simply submit to her will. 

17. I do not accept that position to be correct.  Such circumstances were not only foreseen but were predicted when the decision was made in November 2015 to reverse the child’s residence.  The fulfilment of the prediction of the child’s resistance to the new regime is not a reason to now abandon it. 

18. The child’s flippancy about the situation is evident from her responses to the father’s requests for her to return.  She has said to him, for example:

    You are threatening me.  You have a choice about recovery orders and there would only be a $1000 fine anyway.  My ICL told me this.  Goodbye.

    I will no longer come over, and since I am in high school now things will now go my way.

19. It was contended by the mother that re-structure of the parenting arrangements would accord with what both parents consider to be a regime that best meets the child’s interests.  It is common ground the father floated a proposal in December 2015 for the child to live with the mother for longer than she lived with him in fortnightly cycles.  However, such a tentative proposal was made and tried on the explicit advice of the child’s therapist.  The father told the mother so in an email he sent to her on 16 December 2015.  He stressed to the mother this was only an informal trial and it was not intended to sweep away the orders made in November 2015.  He also stressed the importance of the mother’s participation in the family therapy.

20. Importantly, the father regards the trial arrangement to have failed for two reasons.  First, the mother did not participate in the child’s therapy.  She did not expressly refuse to do so, but she has not done so.  Her failure to participate speaks more loudly than her silence.  Secondly, the child has not spent time with the father since absconding to the mother.  She refuses to do so until he first consents to her permanent residence with the mother and the mother seemingly supports the child’s position.  The father, understandably, does not want to broker an agreement when his hands are tied.  It would not then be a genuine agreement; only a result procured by importunity.

21. Nothing has occurred that was not foreseen and taken into account when the final parenting orders were made in November 2015.  It may be, as the mother contends, that if the child is recovered by the father she will abscond again.  That simply brings consideration back to the weight that should be reposed in the child’s views.  For reasons already given, her views are influential but not determinative. 

22. The orders made in November 2015 should prevail.  There is no valid basis upon which they should be disturbed, at least on an interim basis.  The father’s application for a recovery order will therefore be granted and the mother’s application to vary the existing parenting order on an interim basis will also therefore be dismissed.

23. Of course, the dismissal of the mother’s interim proposal is not a dismissal of her final parenting proposal.  Absent any future application to the contrary, it will proceed to trial in due course.  As it progresses towards final trial, procedural orders will likely be made re-appointing the former Independent Children’s Lawyer and soliciting an updated Family Report. 

Property

1. The mother is fearful that the parties’ competing property settlement applications will proceed to trial two weeks hence with the child’s final residence undetermined. She is concerned that will affect the Court’s exercise of a discretion under ss 79(4)(d)-(g) and 75(2) of the Act. Put plainly, she is concerned the Court will make incorrect assumptions about the child’s future living arrangements, given the pending dispute over final parenting orders, and such error will necessitate a subsequent application pursuant to s 79A of the Act to vary the property settlement orders.

2. That is, of course, a potentiality, but taking that risk does not occasion such prejudice to her as would be occasioned to the father by a vacation of the imminent trial date. Sections 79(4) and 75(2) of the Act, to the extent they deal with forecasts about the parties’ future, require advertence to possibilities not just probabilities. The possibility of the child’s eventual return to live with the mother can be properly taken into account in the property settlement proceedings. Presumably that issue will be well canvassed by the mother and her legal representatives.

1. As was submitted for the father, the final determination of the property settlement dispute between the parties may help abate the conflict between them.  That of itself would benefit both of them, but more importantly, the child. 

2. The property settlement trial was fixed for 22 February 2016 by procedural orders made on 9 November 2015.  Belated vacation of the trial date will delay resolution of the dispute by many months and could well result in costs thrown away by the father. 

3. On balance, the trial should not be vacated. 

4. For those reason I make the following orders.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 February 2016.

Associate: 

Date:  22 February 2016