CAVE & LEVIS
[2017] FCCA 2647
•9 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAVE & LEVIS | [2017] FCCA 2647 |
| Catchwords: FAMILY LAW – Parenting – interim application – appropriate approach to application for ex parte recovery orders – approach on return date after ex parte recovery order – discharge of ex parte orders. |
| Legislation: Family Law Act 1975, ss.11F, 60CC, 65 Family Law Rules 2004, rr.5.12, 5.13 |
| Cases cited: Scarle & Ringwood and Anor [2017] FamCAFC 57 Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS CAVE |
| Respondent: | MR LEVIS |
| File Number: | MLC 9117 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 9 October 2017 |
| Date of Last Submission: | 9 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 9 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Lovering |
| Solicitors for the Applicant: | Ballarat Lawyers |
| Counsel for the Respondent: | Mr Pavone |
| Solicitors for the Respondent: | Nevett Ford |
ORDERS
Order 4 of the Orders made by the Magistrates’ Court at Ballarat on 30 August 2017 be varied to injunct both parties from taking or sending or attempting to take or send the children X born (omitted) 2011 and Y born (omitted) 2014 from the Commonwealth of Australia.
The children live with the Respondent.
The children spend time and communicate with the Applicant as follows:
(a)By telephone/Facetime every day subject to 3(b) hereof between 5:00pm and 5:30pm (Queensland time) with the Applicant to call the Respondent and the Respondent ensure his phone is switched on and charged.
(b)By Skype each Monday, Wednesday and Saturday between 5:00pm and 5:30pm.
(c)Should the Applicant be able to travel to Brisbane and upon giving the Respondent 48 hours written notice, she spend time with the children from 5:00pm Friday until 5:00pm Sunday.
(d)Such other times as agreed between the parties.
In the event that the matter is unable to be listed before the Queensland long summer vacation in 2017/2018 then it is agreed that the children spend half of such holidays with the Applicant at such time and date as agreed.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
THE COURT DIRECTS THAT:
The matter be transferred to the BRISBANE sittings of the Federal Circuit Court on 31 October 2017 at 9:30am before Judge Jarett for mention.
AND THE COURT NOTES THAT:
A.Orders 4, 5 and 6 of the Orders of the Magistrates’ Court at Ballarat on 30 August 2017 remain in full force and effect.
B.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 Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Cave & Levis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9117 of 2017
| MR CAVE |
Applicant
And
| MR LEVIS |
Respondent
REASONS FOR JUDGMENT
(Orders made ex tempore and reasons provided are revised)
This case concerns the care arrangements for two children, X and Y, born 2011 and 2014 respectively. The Applicant applied to a State Magistrate for ex-parte recovery orders and an ex-parte watch list order on 28 August 2017. Ex parte recovery orders were made on 30 August 2017. As a result the police recovered the children in Queensland and placed them with the Applicant in Victoria. No return date was set by the State Magistrate following the execution of the recovery order to allow the Respondent a hearing, rather the case was transferred to the next circuit to be held by the Federal Circuit Court around 5 weeks later.
As a result the children are presently living with the Applicant and the Respondent has not had any form of hearing prior to the listing in the circuit. At the circuit orders were made for the parties and children to attend upon a family consultant in Melbourne for an urgent s.11F appointment on the Friday of the circuit week and the hearing was adjourned to the following Monday.
On 9 October 2017 I made orders that the children live with the Respondent in Brisbane and spend time with the Applicant until further order. At the time of making the orders there was not time in the busy list to provide reasons beyond brief comments. These are the reasons for the order.
Background
There is no dispute in this matter that the Applicant and Respondent had lived together for some time until early this year, with extended family. The grandmother has been a significant part of the family unit living with the parties. The Respondent has a daughter from a previous relationship who has always lived with the Respondent.
Until early 2017 the parties lived in Brisbane. The child X attended an early learning centre in a suburb of Brisbane and then commenced at a primary school in Brisbane. The child Y was cared for by the Respondent and the grandmother. The family attended an (omitted) Church each Sunday. The Respondent is of (omitted) heritage.
In late 2016 the parties discussed going to (country omitted). There is some difference in their evidence as to the extent to which this was driven by the Respondent, however, ultimately it was agreed that the Respondent and the children would go to (country omitted). The Applicant says that the trip was to be for two months for a holiday. The Respondent’s version of the agreement was for a relocation to (country omitted). In the Respondent’s evidence it must have been apparent that a relocation was contemplated as the Respondent says that 15 cubic metres of chattels and a motor vehicle were shipped to (country omitted) and the lease on the rental property terminated early. The Respondent says that the Applicant assisted with packing and took the day off work on 25 January 2017 for this purpose and was present when the shipping company attended to collect the container.
Whether the trip was a holiday or a relocation, it is agreed that the Applicant remained in Australia to finish a work contract that was due to end in April 2017.
Significantly, the Respondent says (in paragraph [33] of an affidavit sworn 28 September 2017) that the Applicant was told of the Respondent’s intention to return to Australia (due to the high costs of living and lack of work opportunities in (country omitted)) and that it was intended that the Respondent return approximately three weeks from the time of the conversation; that is a return date about July or early August 2017). The Respondent says that the Applicant was excited by this news and offered to assist in finding work and a house in Australia. The Applicant did not mention to the Respondent the Applicant’s relocation to Victoria or the application that had been made under the Hague Convention for the return of the children from (country omitted). In a response affidavit affirmed 2 October 2017 the Applicant specifically addresses this claim by the Respondent (see para.15(kk)), however, no denial is made of these allegations. Indeed, at para.15(nm) the Applicant admits to being aware of the Respondent and children “supposedly returning to Australia”.
The Applicant in a response affidavit says that the Respondent was aware that the lease had been terminated, but says that all of the household items were to be put into a storage centre and that the Applicant was not present when the shipping company arrived to collect the belongings. However, the Applicant was aware that the motor vehicle was being taking to (country omitted) (see para.15(hh)).
Remarkably, in the affidavit placed before the State Magistrate, the Applicant did not set out that the lease had been terminated, nor that all of their belongings had, on the Applicant’s version, been placed in storage nor that the car had been shipped to (country omitted). This was disclosed in the affidavit the Applicant provided for The Hague Convention application, but this affidavit was not placed before the State Magistrate.
The material before the State Magistrate gave the impression that the Respondent took the children on a family holiday and suddenly terminated the relationship and stayed in (country omitted). Even on the Applicant’s best case this was misleading and clearly did mislead the State Magistrate.
The affidavit placed before the State Magistrate did not specifically address the requirements of r.5.12 of the Family Law Rules 2004, which sets out an extensive list of matters that must be addressed in an affidavit seeking that orders be made without notice to a respondent. Whilst many of the matters in this list were covered in the affidavit or apparent from the nature of the case, the affidavit nowhere addresses the potential hardship or prejudice to the Respondent nor, most importantly, the inevitable distress to the children if orders were made for the police to recover the children without notice to the Respondent, nor did it explore alternative orders that could have allowed the Respondent a hearing.
Similarly, nowhere is the inevitable harm to the children on a psychological basis of being seized by the police in a recovery order, and taken from arrangements that had been their primary care arrangements since, at least, February, addressed in the affidavit. Nothing addresses the likely case of the Respondent as to being the primary carer of the children. Nothing addresses the relationship, if any, that may exist between the children and their older half-sibling in the household of the Respondent.
Significant allegations of domestic violence are set out in the Applicant’s first affidavit that is said to have occurred between the adults and allegedly witnessed by the children. The affidavit when addressing violence directed at the children simply says:
15. … Due to the level of family violence I was experiencing at the hands of [the Respondent] and [the grandmother] at this time, it was difficult for me to be more actively involved in [Z]’s day to day care.
The Applicant said that whilst the Applicant was involved in the day-to-day care of the youngest child for the first two months of his life the Applicant had not been actively involved in the day-to-day care of that child since then: see para.15.
In the circumstances of this case, where the children had been in the primary care of the Respondent at least since February this year, and most likely considerably longer (even on the Applicant’s case) it is remarkable that the Applicant would seek ex parte recovery orders rather than simply a watch list order and a short return date for service of an interim application. A watch list order would have prevented their return to (country omitted).
Given the delay following the consent for the children to travel to (country omitted) in the care of the Respondent, and lack of any intervention by authorities it is difficult to conclude that the children were at such immediate risk as to outweigh the need to accord the Respondent procedural fairness. As it transpires, the Ministry for Vulnerable Children in (country omitted) received a notification on 16 June 2017 (some months after the Respondent went to (country omitted)). The Ministry reports that after investigation ‘the concerns were unsubstantiated’. The letter from the Ministry states that both children were interviewed and presented as ‘happy and bubbly children’. The children made no disclosures of punishment for bed wetting as was alleged to the Ministry by the person making the notification. One must ask why the Applicant did not notify the Ministry until June 2017 if the children were at immediate risk (assuming this notification came from the Applicant, otherwise the Applicant has made no notification).
Even more remarkable is that the Applicant did not seek to have the State Magistrate provide a further mention date shortly after the ex parte orders to enable the Respondent to be heard as soon as possible after the execution of ex parte orders, but rather obtained a transfer of the matter to the Ballarat Circuit 5 weeks later.
The order obtained from the State Magistrate was not in compliance with r.5.13, which requires that an ex parte order be made only until the time specified in the order or the adjournment date of the hearing. In this case the interim orders were made for an unlimited time and no adjournment date was set, rather the matter was transferred to another court.
Principles applicable to ex parte applications
It appears clear that the Applicant misled the State Magistrate and the solicitors for the Applicant, at best, failed to provide the State Magistrate with any or any appropriate assistance as to the law and applicable principles to be applied in an application such as this. I therefore take some time to reiterate the relevant principles for making an ex parte order, as are apparent from the authorities and the particular difficulties in applying these principles in children’s cases.
The difficulties that may be caused by ex parte recovery orders were identified in the Full Court in Scarle & Ringwood and Anor [2017] FamCAFC 57 where the court said:
[17] The trial judge acknowledged the problems with the making of the Recovery Order and said at [12]: “Certainly the issue of a Recovery Order was a very dramatic step and not one that I would have taken had I been handling the case in early 2013.” We agree. At best the evidence adduced by the grandmother suggested a Commonwealth Information Order and/or Location Order was required, followed by a prompt hearing. The consequence of the Recovery Order was that the children were removed by the police and placed with the grandmother. The Applicant had no opportunity to oppose the application or deny the serious allegations made against her, virtually until the hearing three years later.
Another poignant example of the difficulties that can flow from such ex parte orders can be seen in Sawant & Karanth [2014] FamCAFC 235 where a Magistrate’s ex parte recovery orders resulted in a breastfeeding child being removed from a mother.
As the Court of Appeal in Victoria noted in National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VicRp 31; [1991] 1 VR 386:
Where an injunction or similar relief is sought against a person without notice to him the court should always bear in mind the words of Lord Langdale MR in Earl of Mexborough v Bower [1843] EngR 1208; (1813) 7 Beav 127, at p 131; [1843] EngR 1208; 49 ER 1011: "
... nothing can be more true than this, if parties come and ask for an injunction ex parte, the court looks most minutely to the time in which they have permitted the matter complained of to proceed, and will not allow them to obtain an injunction in the absence of the other party, when they have themselves, for some time, acquiesced. It is quite reasonable that that should be so, because the granting of an injunction ex parte is the exercise of a very extraordinary jurisdiction, the effect of which, in every case in which it is asked, is most alarming; therefore the time at which the plaintiff first had notice of the existence of the subject of complaint, is looked to with the greatest care and jealousy, in order to prevent an improper order being made against a party in his absence . . ."
Megarry J has gone so far as to say this: “Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion” Bates v Lord Hailsham of St Marylebone [1972]1 WLR 1373, at p 1380. This statement was probably not intended to be absolute, as his Lordship's later words (“unless perhaps the plaintiff had had an overwhelming case on the merits”) seem to accept. While the applicant will find it very difficult to persuade the court, in a strong enough case an ex parte injunction can properly be granted although the applicant could have given notice of the application but has failed to do so. But the useful modern practice, well known in this State, of hearing in opposition to an application the party sought to be enjoined, who has been given informal notice (Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213), makes it more difficult for an applicant to show that he has not had the time to give the opposite party such notice of the application, formal or informal, as would have enabled him to be heard.
The modern practice referred to has been extended in the Federal Circuit Court to include even telephoning a Respondent from court to secure their engagement in proceedings in order to avoid the need for ex parte recovery orders in many cases and orders to bring children to court after a short delay of a day or so.
If a court is satisfied that the urgency of a claim is so great as to outweigh the egregious lack of procedural fairness inherent in making ex parte orders, the only way for the court to ameliorate the procedural unfairness is to demand that Applicants make full and frank disclosure of all relevant material, including claims likely to be made by the other party. An Applicant must act with utmost good faith (‘uberrimae fides‘): see Dalglish v Jarvie [1850] EngR 688; 42 ER 89; (1850) 2 Mac & G 231, 243. As was said by the High Court in Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3:
[15] It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made [Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681-682; [1912] HCA 72; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 376-377 [130]-[133]; [2009] HCA 49]. The principle is not confined to particular types of interlocutory orders [Eg Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677]. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested [Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd (1988) 20 FCR 540 at 543].
At common law, the usual result that flows from a failure of an applicant to fulfil their obligations on an ex parte application is the discharge of the orders. The appropriate test for discharging orders as a result of non-disclosure is set out in Thomas Edison Limited v. Bullock[1912] HCA 72; (1912) 15 C.L.R. 679: ‘omitted material must ... be such as might have influenced the learned judge upon hearing the ex parte application’. This approach was adopted in Myrtle & Myrtle [2012] FamCA 460 where Kent J said:
[334] The duties of litigants and their legal representatives to act with candour on an ex parte application are well-established. All the facts relevant to the relief sought, whether or not that supports the grant of the relief, must be laid before the Court. [See Thomas A Eddison Ltd v Bulloch [1912] HCA 72; (1912) 15 CLR 679, 681-3; R v Kensington Income Tax Commissioner (1917) 1 KB 504 (CA); Mobasser v Mankervis (1983) FLC 91-335.]
[335] Aside from this duty, the failure to disclose a material fact in an ex parte application for an injunction, subsequently exposed on the next return date, commonly leads to the discharge of the injunction whether or not, if the disclosure had been made, the injunction would still have been granted. [See Stowe (1981) FLC 91-027, 76,2601; Bentley v Nelson [1963] WAR 89; Dean (1977) FLC 90-213, 76,095; Lee (1977) FLC 90-314, 76,678; Oates (1980) FLC 90-853, 75,397].
To the extent that Stowe and Stowe [1980] FamCA 92; (1981) FLC
91-027; (1980) 6 FamLR 757 suggests that non-disclosure will only be relevant if it would have resulted in a different outcome it must be doubted. Similarly, where In the Marriage of Erdal [1992] FamCA 22 suggests that non-disclosure on an ex parte application will only be relevant ‘if deliberate’ this understates the position as an Applicant for ex parte orders bears a heavy responsibility to place all relevant material before the court.Whilst the general law provides much important guidance on the process and considerations that are relevant when considering the extraordinary step of making ex parte orders, one must bear in mind that the best interests of the children remain the paramount consideration in the context of children’s proceedings under the Family Law Act 1975: see, for example, Besser & McCoy [2008] FamCAFC 27 at [14]. This necessitates considerable easing of the principle that orders should be discharged if there is non-disclosure: see In the Marriage of Erdal. This variation from the standard common law approach is founded upon the principle that the best interests of the child is the paramount consideration and the conduct of the adults can only be relevant to considerations with respect to their attitudes to the responsibilities of parenting or parenting capacity. Certainly, a child could not be left at risk even if a parent misled the court in obtaining an ex parte order.
The Court of Appeal in Victoria, in National Australia Bank Ltd v Bond Brewing Holdings Ltd, provided a very useful list of considerations that are important when considering granting ex parte relief which, if adapted to parenting matters, could be expressed as:
…[what] alternative remedies [are available] and [what level of] damage [or distress will there be] to the [children or other party?]
How did the balance of convenience incline? …
Was such a case made out as warranted ex parte relief and in particular this most drastic form of ex parte relief?
What was the degree of urgency [and what delay has already occurred which may tell against the argument that the children are at immediate risk]?
When could notice first have been given to the [other party] of the intention to apply? …
Given that a [change in care arrangements] was to be made, just what was its basis?
How long should the order run? …
How were the [other parties] to be given notice of the order and of the basis on which it was made? …
Should security be ordered and if so in what amount [for example where return of children may involve considerable cost]?
What of costs [where the other party may be impecunious and unable to engage a lawyer without funds or a delay to apply for legal aid]?
Most importantly, one cannot underestimate the distress (and potential psychological harm) to a child when the police execute a recovery order. Invariably the police attempt to execute the orders in the least distressing way for a child, however they must also make an assessment as to the possible dangers inherent in executing such an order. At best the execution of the order results in the child being taken without warning from a place of apparent safety, such as a school or kindergarten, by people unknown to the child. At worst the child may be seized as a result of a raid upon the child’s home by police prepared for all manner of resistance (sometimes even armed and in protective vests), then being physically taken from their distressed parent by the police. In most cases children can be secured within Australia with a watch list order and the parent served.
Where a parent fails to engage with the court arrest of the parent is preferable to a recovery order. Whilst there will occasionally be cases where the risks to a child are such as to outweigh the obvious harms flowing from a recovery order, those cases will be rare indeed. The risks of harm as a result of the effects of a recovery order must always be carefully weighed against the risks of harm if the Respondent is given notice. In this respect, any delay in seeking an ex parte order will be a significant consideration, often telling against urgency and the risk of harm that may follow from giving the Respondent notice of the application.
If the proceedings did not involve the welfare of children, the conduct of the Applicant in this case in obtaining the ex parte order in the way it was obtained and on the terms on which it was obtained, would in my view, result in the court discharging the order. However, as this is a matter that involves the best interests of children, the conduct of the Applicant is but one factor in determining what the most appropriate orders are for these children at this point in the proceedings. To approach the matter on the basis of simply discharging the orders would not appropriately place the best interests of the children at the forefront, as is required under the Family Law Act 1975.
The nature of family law proceedings presents further unique difficulties for the court. Litigants are often extremely emotional and therefore find it difficult to provide a balanced account of events to their solicitors. Many family law solicitors will have rarely, if ever, applied for ex parte orders and will often be operating on a limited budget that precludes briefing experienced counsel. The result is that judges and magistrates who are sitting in very busy lists often receive far less assistance than would reasonably be expected in ex parte applications in other areas. Despite often imperfect material and little assistance the risks to a child must still be weighed – risks more significant than loss of money or property. The State Magistrate, in this case, was placed in an invidious position and one can well understand why the orders may have been made.
The conduct of the Applicant in bringing the proceedings in the manner in which they were brought is a matter that must necessarily reflect upon the Applicant’s attitude to the responsibilities of parenting under s.60CC(3)(i), and the level of insight that the parent shows with respect to the need to protect the children from psychological harm from separation from those who have been primarily caring for the children for some time as required by s.60CC(3)(d). However, it is important to bear in mind that these are but some of a great many factors that are relevant in determining the children’s best interests in a case such as this and should not permitted to become overwhelming or determinative: rather these matters must simply be weighed along with the various other factors relevant to determine the most appropriate orders for the care of the children.
Considerations to determine the appropriate interim orders
I turn then to consider the matter in accordance with the principles set out in Goode & Goode [2006] FamCA 1346 in order to determine the appropriate interim orders under s.65D, noting that the best interests of the children are the paramount consideration (s.60CA and its repetition in s.65AA).
Each parent sought residence. As one parent lives in Queensland and the other is now in Victoria time with the non-residence parent will be limited due to distance. No claims for supervision of time were pursued.
There were two substantive factual matters that were the focus in the hearing. As the matter involved, effectively, a unilateral removal of the children from the adults who appeared to have been their sole and primary carers for, at least, the last six months, and probably primary carers for a considerable period before that, that factor weighed in favour of the children being returned to the Respondent. The most significant factor weighing against such a proposition is the serious family violence allegations made by the Applicant against the Respondent and the grandmother. Whilst those allegations are denied they remain an important consideration in determining the potential risks to the children, should the allegations be true.
As it was difficult to make any nuanced assessment of the weight to be placed upon allegations that are denied or are based upon affidavit material alone: it was necessary for further steps to be taken to obtain more information about the facts and circumstances of the case. This difficulty presents itself to the court not only in cases involving domestic violence, but also in cases where there is no level of agreement about the extent to which either of the parents have been involved in the day-to-day care of the children. Needless to say, it isn’t appropriate to approach cases on the basis of simplistic reliance upon generalised statistics relating either to the care arrangements or the abstract statistical likelihood of incidents of domestic violence having occurred, but rather each case must be approached individually as a dispute on the facts of the particular case.
As a result of the real difficulties of the competing allegations presented in this case, I made orders for an urgent an assessment pursuant to s.11F of the Act and memorandum. That memorandum reported that both the Applicant and the Respondent allege abuse and neglect of the children by the other, and the alleged past involvement of the Protective Services in (country omitted), Queensland and Victoria. In the household in which the Applicant is currently living it is said that the de facto step-parent has a criminal history and been violent in the home and was recently released from prison. The Applicant acknowledged that the person had a past criminal history, but was unaware of the extent of it and said that they continued to live in Tasmania. It was said at the hearing that the person was released from prison in Tasmania and had attended with the Applicant and sat beside the applicant in the back of the court.
Not surprisingly, violence and neglect as alleged by both parties were identified as significant risk factors by the family consultant. Also, unsurprisingly, the memorandum identified that there were risks to the children’s overall development if continually exposed to high levels of mobility, changes in primary caregivers, and exposure to ongoing family conflict.
However, on assessment it was unclear whether the Applicant or the grandmother was the primary attachment figure for the children. It is clear that the children have lived most of their lives in an extended family environment and there are a number of cultural differences between the parents’ approach to family.
The children were brought to the interviews by the Respondent and the grandmother and presented “happy, bubbly and talkative”. They presented in accordance with developments congruent with their chronological age. However, soon after entering the playroom, when separated from family, they became dysregulated and distressed. After a quarter of an hour the younger child became inconsolably distressed calling for his grandmother, requiring her to remain in the childcare room with the children for the duration of the morning in order to calm them. The younger child also cried when the older child left the childcare room even though his grandmother remained present.
The elder child said that he missed the Respondent and the Respondent’s siblings whom he referred to as his brothers. Importantly, the elder child said that he liked everything about each of his parents and that there was nothing he did not like about them. He was aware that his Applicant “took me” and he recounted that he was upset that he did not get to see the Respondent. He expressed happiness at the idea of returning to his old school in Queensland and was aware that the court would be making a decision about who he lives with.
The younger child opened his arms to the Applicant and went without difficulty and appeared to have a positive relationship with the Applicant as well. The older child asked the Applicant about the court and where he would be living and was appropriately told it was not something for him to be concerned about.
The consultant’s view was that the children: “Presented with high levels of dysregulation, they dissolved into tears and bickering with each other easily, were unsettled, distressed and confused”. The consultant was concerned that without a more specialised attachment assessment it was difficult to comprehensively assess the behaviour of the younger child who cried for his grandmother, went to the Applicant clinging and also cried when his brother was not present.
It appears to me that given the recent events in this case, it was particularly difficult for the consultant to have a realistic opportunity to make an effective assessment with respect to attachments. In simple terms, the two young children of six and three years of age have suffered significant psychological impacts of being recovered by the police and separated from those that were their primary carers for, at least, six months prior to the present assessment, making it difficult to undertake a nuanced assessment in the time available for the s.11F appointment.
Ultimately, the consultant concluded that on the limited information available and limited assessment opportunities available on 6 October that the younger child most likely identified with the grandmother as his primary parent, although willingly sought comfort from the Applicant as well. The consultant was of the view that the children seemed to have established relationships with all three significant adults in their life. The consultant pointed out that without more information such as from police, Child Protective Services, schools or other health professionals, it was difficult to assess risk at this point in time. Remarkably, no such subpoenas have been issued by the Applicant in the intervening period. The letter from the Ministry of Vulnerable Children in (country omitted) (discussed above) shows no risks were identified by the Ministry in June 2017. The Respondent, who was not aware of the proceedings until the children were taken, and then had to obtain legal advice, issued a subpoena to the Victoria Police, although it provided little assistance with respect to assessing the risks to the children.
On the family consultant’s assessment of the children and their interaction with the parents, the consultant was of the view that either party was a viable alternative carer at present and that at the point of assessment: “There does not appear to be information available at the time of writing this report which would warrant a notification to Child Protection for the care of the children with either party”.
As one would expect, the consultant recommended that the children remain together as a sibling group and noted the significant disruptions to their care and the recent change of school for the older child as a result of the ex parte order. Clearly, on any parenting arrangement, regular contact between the children and the other parent is important.
The Applicant seeks orders that the children remain in Victoria and spend limited time with the Respondent. The Respondent seeks orders that the children return to living in Queensland and have regular time with the Applicant limited only by the distance that is between the parents: that is, if the Applicant remains in Victoria that time would necessarily be more limited than if the Applicant returns to Queensland.
I commence by considering the s.60CC(3) factors. The children in this case did not express any specific views, beyond the older child liking the idea of returning to his school, which is unsurprising given that he appears to have been in a relatively settled arrangement until the recovery orders.
Importantly, the children did not express views either by implication from their conduct, or orally by the eldest child (s.60CC(3)(a)) to indicate that they had been the victims of family violence or abuse that presented as immediate risks. Clearly, the behaviour of the children shows that they should not be separated, and the history of the matter indicates that they have spent considerable time in an extended family living arrangement.
The children appear to have a strong relationship with each other and their parents and the grandmother. On balance, the grandmother appears to be the primary parent for the younger child although it is difficult to place significant weight on this assessment given the distressed state of the children and the events that they have suffered over the last month.
I proceed on the basis that the children identify strongly with the adults in their life and that it is slightly more likely that the grandmother is identified as the primary carer, but there is nonetheless a significant relationship with the Applicant (s.60CC(3)(b)).
When considering the extent to which the parents have made arrangements for the children to spend time and communicate with the other parent and to the extent they have allowed the other parent to participate in decision-making issues (s.60CC(c)), the facts in this case are less than clear.
If the Applicant’s claims with respect to domestic violence are borne out it is clear that the conduct of the Respondent has, effectively, prevented the Applicant from properly participating in the decisions about the children and, more recently, limited the Applicant’s capacity to spend time with the children. If, however, the allegations of the Respondent are borne out, the limited contact has largely been a consequence of the conduct of the Applicant. The difference in the versions given as to departing for (country omitted) lead to some concerns as to the capacity of the Applicant to place the children’s needs at the forefront if any violence is as significant as alleged: no steps were taken to prevent them departing, nor notifications to relevant authorities (at least until June 2017). It also seems unlikely that the travel could reasonably have been considered a holiday in circumstances where furniture and a car were placed in storage (on the Applicant’s version) or shipped to (country omitted) (on the Respondent’s version), and a house lease was terminated.
There is significant dispute between the parents as to the extent to which they have fulfilled their obligations to look after the children. They made no specific allegations about child maintenance that would fall within s.60CC(3)(ca).
The likely impact upon the children’s circumstances of any separation from parents, grandmother or other siblings is a specific factor under s.60CC(3)(d). It does not appear that there was any consideration given to this in the affidavit material that was placed before the State Magistrate. It is clear from the distress that the children exhibited in the childcare room that the separation from their primary carer of, at least, the last six months has been of significant distress to them.
It is obvious that separation from a person identified as the primary carer or primary parent would be particularly distressful for a three year old child. This is a factor that weighs heavily in favour of the children returning to the care arrangements in place prior to the court orders until such time as a more nuanced assessment can be undertaken of the most appropriate care arrangements. Similarly, the children were in an extended family arrangement which was terminated by the recent court orders. The impact of the recent orders, on the evidence of the consultant, is also likely to be the cause of the children seeking comfort and security in the presence of each other. There is a real risk that there has been a disruption to primary attachments as a result of the events that have occurred.
In this case there are practical difficulties and expenses involved in the children spending time with either parent if in the household of the other (s.60CC(3)(e)). Although, I note that the Applicant had until recently lived in Queensland and obtained work as a (occupation omitted) in an (employer omitted) in Queensland. Whilst the Applicant claims to be unable to return to Queensland for financial reasons, it’s difficult to see that this could be sustained, at least on the material as currently filed.
Turning to consider the capacity of the parents to care for the children (s.60CC(3)(f)), I note that if the allegations of family violence are made out this tells heavily against the capacity of the Respondent and the grandmother to properly provide for the care of the children, particularly their emotional needs. The conduct of the Applicant in bringing the proceedings in this manner, effectively causing the present disruptions to the children, weighs against the Applicant having good insight into the needs of the children.
The failure to bring the proceedings sooner if the children were thought to be at real risk of imminent harm also tells against the Applicant’s capacity, although may well, ultimately, be explained to some extent by the impact of the alleged family violence (at least up to February 2017).
In this case, the parents are adults of sufficient years to properly care for the children, and the grandmother not so old as to raise any concerns about her capacity to care for the children (s.60CC(3)(g)). I note that importantly the two children in this case are particularly young, and have clearly been living in a household with a strong (omitted) heritage and spent most of their lives living in a household containing members of their extended family.
It is not said that the children are of Aboriginal or Torres Strait Islander descent (s.60CC(3)(h)) although their (omitted) heritage is similarly important and must be considered under s.60CC(3)(m).
The facts and circumstances relevant to the attitude of the parents to the children and the responsibilities of parenthood are appropriately noted in the above discussions (s.60CC(3)(i)).
I pay careful regard to the allegations of family violence in this case (s.60CC(3)(j)), which are of quite significant and controlling violence. If proved, they would be strong factors in favour of the Applicant succeeding in the application to have residence of the children. On the evidence, there is no immediate risk to the children, at least whilst the matter is being litigated, and no complaint made by the children of being the victims of family violence and certainly no complaint of any assault (either to the investigators of the Ministry of Vulnerable Children, nor the family consultant). Whilst the long term effects of violence are significant and insidious, in the short term this must be weighed against the potential risks of disrupting the children’s care arrangements and primary attachments.
There is no order that is least likely to lead to further proceedings (s.60CC(3)(l)) in that the significant issues raised in this matter will require detailed examination before the court in order to determine what are the most appropriate orders for these children into the future.
I turn then to consider the primary considerations under section 60CC(3)(2). Firstly, there is obvious benefit to the children in continuing to have a meaningful relationship with both parents. They have a strong relationship with both parents which should be preserved if possible. This factor does not appear to be an issue in the case. On either party’s case one parent will live a considerable distance from the children, at least in the short term.
The second primary consideration is the need to protect the children from physical or psychological harm as a result of abuse, neglect or family violence (s.60CC(2)(b)). This is a significant factor in this case on the allegations of the Applicant, however, must be seen in light of the fact that the allegations are not admitted and importantly for an interim hearing that immediate risk to the children is not borne out by the evidence of the family consultant after having interviewed the children and seen them in the presence of the parents, nor the investigation in (country omitted).
In the context of this case this factor does not outweigh the importance of preserving the children’s primary care arrangements and stability pending a proper assessment of the issues and a implementing a planned change in care arrangements if that is what is ultimately appropriate.
The Applicant now alleges that the Respondent is not the parent of the eldest child. This is a factor that does not conveniently fit within the specific matters listed in s.60CC and must, therefore, fall within s.60CC(m) or the general requirement to consider what is the most appropriate order for the child under s.65D. The parties are listed on the child’s birth certificate. The Respondent says that this is the first time that such an allegation has been raised. The child has, at all times, been treated as a child of the parties. Given that the allegation has been raised, it is appropriate that there be DNA tests. However, on an interim basis, in the circumstances of this particular case, it does not appear to me to be a factor that tells against the interim orders that should be made to preserve the children’s family connections and living arrangements pending a more detailed and nuanced assessment.
Given the issues in this case, it is not appropriate or necessary to make a determination on an interim basis as to parental responsibility and I did not propose to do so. In these circumstances I did not need to consider the presumptions that might arise if such an order were made.
In the circumstances I made orders for the children to return to the household of the Respondent in Queensland. Given that the children and the Respondent would be in Queensland and that it would be necessary for there to be a full family report and detailed evidence in the matter, it’s appropriate that the matter be transferred to the Brisbane Registry of the court.
Having announced the substantive determination, the parties were able to identify a form of orders for parenting arrangements that reflected the substantive finding and met the logistical needs of the parties. I have, therefore, made orders in those terms and need not address the specific detail of the orders in these reasons. The preparedness of the Applicant and Respondent to draw orders to reflect the general findings should not be treated as resulting in consent orders that would limit their rights with respect to the future conduct of the matter.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 30 October 2017
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