CAUSER & KALB

[2015] FamCA 34

FAMILY COURT OF AUSTRALIA

CAUSER & KALB [2015] FamCA 34

FAMILY LAW – CHILDREN – Mother not attending – Evidence of father not challenged – Unusual lifestyle of a “religious” nature of the mother not good for the children – Best interests principles applied.

Family Law Act 1975 (Cth)

APPLICANT: Mr Causer

RESPONDENT: Ms Kalb

FILE NUMBER: AYC 429 of 2014

DATE DELIVERED: 14 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 January 2015

REPRESENTATION

THE APPLICANT:	In person
THE RESPONDENT:	No appearance

Orders

1. That the applicant have leave to proceed in the absence of the attendance of the respondent.

2. That the father have sole parental responsibility for the children O (female) born … 2004 and H (female) born … 2006.

3. That the children live with the father.

4. That the time between the mother and the children and any communication relating to that relationship be by agreement between the parents.

5. That the mother be restrained by injunction from removing the children from the Town B area.

6. That each of MR CAUSER born … 1953 and MS KALB born … 1976, their servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the children O (female) born … 2004 and H (female) born … 2006 and the children are restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of two years from the date of these orders.

7. That upon expiration of the specified or default period referred to and subject to any order of a court of competent jurisdiction, the Australia Federal Police will remove the children’s names from the Watch List NOTING THAT if either party seeks that the children’s names remain on the Watch List for a period beyond the two year period, that party must file and serve an application and an affidavit setting out the evidence to support such application.

8. That as soon as practicable the applicant father serve a sealed copy of this order upon the AFP Operations Coordination Centre, GPO Box 401 Canberra ACT 2601, and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

9. That a copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

10. That the father send a copy of these orders and the reasons in due course to the mother at her last known email address.

11. That the reasons this day be transcribed and be made available.

12. That the application filed 4 August 2014 is otherwise dismissed.

13. That the orders of the Local Court at Town B are otherwise discharged.

14. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Causer & Kalb 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: AYC 429 of 2014

Mr Causer

Applicant

And

Ms Kalb

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Causer to whom I shall refer as the father.  The respondent is Ms Kalb (“the mother”).  The two children who are the subject of these proceedings are O, who has now just turned 10 years, and H, who has just turned eight.  It is important that I put on record the procedural side of things to indicate how this case has come before this Court. 

2. An application was filed by the father on 4 August 2014 in the local Court at Town B.  It came, presumably, before a magistrate, although the order seems to have been signed by a registrar but nothing turns on that.  The magistrate dispensed with service on the mother save for service to an email address and then permitted the father, on the basis of evidence filed on 4 July, to proceed without notice to the mother.  For reasons that are not entirely clear because there are no transcribed reasons before me, a separate order was made for the application to be transferred to the Family Court of Australia at the Canberra Registry for listing at the Wagga Wagga circuit.

3. The Family Court of Australia does not sit in Wagga Wagga so presumably some bureaucrat has decided that the better course was to transfer the matter to the Federal Circuit Court, which did have a circuit sitting in Albury. 

4. On 28 October 2014 the matter came before Judge Harman.  Again, I have no indication of exactly what happened on that day because I have neither transcript nor reasons for judgement.  However, there is a bench sheet on the Court file which indicates that a Ms Thomas appeared on behalf of the father.  He has told me in Court today that this was a duty lawyer who told him to sit down in the Court and be quiet.

5. The mother is shown on the record of the Court as appearing in person.  For reasons that are unclear, Judge Harman then transferred the proceedings to this Court without making any other orders.  He noted on the orders that the reasons for the transfer were that the parties consented to it.  That seems a little odd bearing in mind no one knew exactly what the parameters of the dispute were for reasons that I will come to.

6. It is important, however, that I note his Honour’s observation on the order which reads as follows:

   The proceedings involve what is, in effect, an appeal by the respondent against orders made by a local Court magistrate the hearing of which appeals outside the jurisdiction of this Court. 

   His Honour may be correct but there was no notice of appeal against the orders made by the Local Court in Town B.  But more importantly, some two months after the orders were made in Town B, there still had not been any application filed or other document filed by the respondent.  It may be that an oral application of some description was made but his Honour used the words “in effect, an appeal” so I have my doubts.

7. Needless to say the matter was then sent to Melbourne by the Federal Circuit Court where it came before Registrar Sikiotis of this Court in chambers on 28 November.  The registrar organised a telephone link between the father and the mother and the Court and then made orders that the “oral application of the respondent” to the appeal was to be listed in the duty list today.  Again, I do not know what that means.

8. I do not think it is appropriate that an oral application be treated as such because of the nature of the application and the fact that specific details as to what orders should be sought and grounds of appeal would need to be pleaded.  In any event, much would depend upon whether or not the orders of the Local Court at Town B were final orders or, indeed, interim orders.  They clearly purport to be final orders because the registrar who drafted the order distinguishes between an interim airport watch order and the final parenting orders.

9. Importantly, the registrar on 24 November decided that the mother did have some cause for an application for relief and therefore made orders that documents be filed by no later than 8 December.  The notice of appeal was one of those documents so ordered along with the response to the initiating application and supporting affidavit material.  The registrar then made an order that, in the event that the mother failed to comply with that, then, subject to the discretion of this Court, leave was granted for the father to proceed, on an undefended basis, to seek final orders in the terms of the orders made in Town B on 4 August.

10. For reasons that I have already indicated, I do not propose to treat the purported oral application as some sort of application for an appeal because the mother is not here nor has she complied with the order of the registrar of 24 November.  That brings me then to today. 

11. There has been no document filed since 24 November by the mother and she has not attended at all.  The father has indicated that he had a conversation with her a week ago and she indicated to him that she was not coming.

12. More importantly, this is a case about the parenting of children and the evidence supports a conclusion that the mother is not having any time with them.  One might well understand why that is so and for that reason I need to look back at how all this came about. 

13. The history really starts after the separation of the parties.  Sequentially the children were living with the mother from March 2012 to December 2013 when an agreement was reached that they would live with the father, “Until she could source stable accommodation.”

14. The father then had the children from Christmas Eve 2013 until the end of February 2014 and he enrolled them in the local primary school where the children settled.  Around 24 February the mother forcibly removed the children from his care and then disappeared, as he says, travelling across Australia with the children for two months, temporarily residing in Sydney, Town C in the Northern Territory, Melbourne and Town D in New South Wales during which time they did not attend school. 

15. These facts may not necessarily be accurate but this is the unchallenged evidence of the father.  The mother has had ample opportunity to respond to all of this as the basis for her supposed appeal against the magistrate’s order but she has not done so. 

16. On 5 July the father collected the children from Town D and they have remained with him since that time.  One might wonder why the situation got to this.  Perhaps it can be concluded from the following material.

17. In around November 2013 according to the father, the mother told him that she had joined Organisation E.  When he inquired of her what that was about, she replied, “We will set in place a new world order.”  He did some research and discovered that Organisation E was a worldwide sovereign organisation with a major religious influence.  Their leader was described as a man known as, “Mr [F],” who intended to allocate a large sum of money for each member of the planet if the people accepted his demands. 

18. The father said that after the mother joined this organisation she changed her behaviour, becoming obsessed with her work as queen, which he said she told him was a title given to her by Mr F.  He said she spoke irrationally while trying to influence friends and family to change their lives.  At times she was unreasonable and aggressive and she travelled to various places, including Indonesia, acting as a delegate of this organisation. 

19. He then went on to say that over a period of time he ascertained that the children moved locations 25 times during which they were said not to have been attending school, “Because they were being educated to be slaves.”  He said that the mother told him words to the effect that where the children were going, they only needed to have clean hearts not reading and writing skills.

20. It is fair to say in this enlightened community that everyone is entitled to their views, including their views about how to raise children but, ultimately, when there is a dispute, the Court has to apply the provisions of the Family Law Act 1974 (Cth) (“the Act”). 

21. Section 60B of the Act sets out the provisions as to how the Parliament of Australia expects its children to be raised.  Section 60B has some very clear guidelines for Courts but, ultimately, if a parenting application is made not only must a Court consider the best interests of the children as the paramount consideration but it can only make an order if it is proper to do so.

22. Even allowing for the most unusual tastes in lifestyle and varying parenting aspects, it is hard for me to subjectively consider that Organisation E or the queen of that organisation is an appropriate arrangement to have these children brought up in, particularly where one of the fundamental tenents of children’s rights in this country is to be educated so that they become responsible adults and members of the community.

23. These children were clearly disadvantaged by living with their mother and I can well understand why the magistrate in Town B took the view that he did.  I am a little perplexed as to why the Federal Circuit Court did not treat the application the same way but, needless to say, the children have not been prejudiced because they have been residing with the father ever since.

24. In relation to the application for an airport watch order that is an injunction preventing parents from removing children from the Commonwealth of Australia.  In this particular case, bearing in mind the evidence of the mother’s travel and her itinerant and nefarious lifestyle, this is an appropriate case to make that order on a final basis for at least two years, during which time the children will be sufficiently attached again to the mainstream of Australian life.

25. In the circumstances, it is important that I consider the section 60CC factors.  The views of the children are not clear but they do say that they have not had the sort of schooling with their mother as they have had with their father.  As the father described them, they are settled.  I am obliged to take into account the nature of the relationship between the children and their respective parents and there is no evidence from the mother who has had ample opportunity to file material and has failed to do so.

26. I conclude from the evidence of the father that he is caring for the children properly and the absence of the mother indicates that she is not particularly upset about the way he is dealing with the children’s lives.  Responsibility as parents is a critical issue.  I have already indicated my views about the mother being entitled to live whatever life she wants but if it is not, in the subjective view of the Court, proper and in the best interests of the children, the Court has an obligation to intervene.

27. The mother has not set out what arrangement she proposes for the future of the children even if they do live with the father and, on that basis, it is appropriate that I leave that to the parents to sort out. 

28. One of the fundamental questions in every parenting case is the question of parental responsibility.  Section 61DA of the Act provides that in parenting cases the Court is to start from the presumption that each of the parents of a child under the age of 18 years has parental responsibility for them.  The only time that should be removed is in circumstances where a Court is satisfied that either there is no prospect of an arrangement about major decisions being made jointly between parents in an appropriate way.  I refer to section 65DAC of the Act.  In my view, this is clearly a case where it is not in the best interests of the children the parents have equal shared parental responsibility.  There is not only no communication between parents, there is an abdication of responsibility by the mother.

29. On that basis, the father having done what seems to be a fairly good job in bringing the children up for the last six or eight months, and the absence of any proposal by the mother, not only in relation to the welfare of the children but how decisions would be made for them – it is appropriate that he have sole parental responsibility.  I make final orders in terms at the start of these reasons.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 January 2015.

Associate: 

Date:  28 January 2015