Chidley & Caire - [2008] FMCAfam 396

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHIDLEY & CAIRE

[2008] FMCAfam 396

FAMILY LAW – Children – interim application for children to remain with mother in Tasmania – consent orders in 2005 for children to live with father in Queensland – father imprisoned – mother unilaterally removes children to Tasmania.

Applicant:

MS CHIDLEY

Respondent:

MR CAIRE

File Number:

LNC 675 of 2007

Judgment of:

Roberts FM

Hearing dates:

14 & 16 April 2008

Date of Last Submission:

16 April 2008

Delivered at:

Launceston

Delivered on:

16 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr G Rolfe

Solicitors for the Applicant:

Gary Golfe Solicitors

Counsel for the Respondent:

Ms A d'Emden & Mr P Fitzgerald

Solicitors for the Respondent:

Legal Aid Commission of Tasmania

ORDERS

That the Mother MS CHIDLEY is to return the children, K born in 2003 and C born in 2004 to the care of the Father on Tuesday 29 April 2008 at Launceston Airport at [X] p.m. in order to meet the Father arriving at Launceston Airport on a flight scheduled to arrive at approximately that time.
That in the event that the Father's flight is delayed, the mother is to remain at Launceston Airport until that flight arrives in order to comply with Order No. 1 hereof.
That the father has leave through his solicitors to vary the provisions of Order 1 hereof to provide for a flight arriving at Launceston at some later time provided that such arrangements are provided in writing to the Mother's solicitors.
That the matter is otherwise adjourned for mention in Devonport on Thursday 24 April 2008 at 10.30 a.m. (noting that the legal representatives for the parties will appear by telephone).

IT IS NOTED that publication of this judgment under the pseudonym Chidley & Caire is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

LNC 675 of 2007

MS CHIDLEY

Applicant

And

MR CAIRE

Respondent

REASONS FOR JUDGMENT

In this matter the applicant is MS CHIDLEY (“the mother”) and the respondent is MR CAIRE (“the father”). They are the parents of two young children, K (born in 2003) and C (born in 2004). The father lives in Queensland and the mother lives here in Tasmania.
The father and his lawyer are appearing by telephone. The mother's lawyer is here but the mother is attending by telephone from the East Coast of Tasmania.
The applications before the court are an Amended Application filed on behalf of the mother on 17 December 2007 and a Response filed on

26 February 2008
.

Background

The mother's application is an Amended Application because she had previously filed application when she was unrepresented. That initiating application was filed on 15 October 2007. That handwritten application is not very clear, but what is clear is that she was anticipating further proceedings in the Family Court in Brisbane. She mentions that in the interim and final orders sought. She mentions in the interim orders sought that the father was at that time in custody.
The circumstances in which these competing applications have come before the court are basically that the children were living with their father in Queensland. He was incarcerated for a relatively short period and during that period the mother travelled from Tasmania to Queensland and brought the children here to Tasmania.
The wider background of the matter is that there had been previous proceedings in the Magistrates Court at Caboolture, which culminated in consent orders by which the children were to continue living with the father. I say “culminated” because prior to that it had been necessary for the father to firstly obtain a Commonwealth Information Order to find out where the mother was, and then obtain a Recovery Order.
Interim orders were made providing for the mother to spend time (or have contact as it was then known) with the children at a Contact Centre in C but, as I said, that culminated in a consent order that the children were to live with the father. The mother was also to have contact on certain terms which did not include it being at a Contact Centre.
In her affidavit material, the mother makes statements to the effect that the father “pulled the wool over her eyes” in relation to the consent orders. I have some difficulty accepting that, given that the proceedings lasted for some considerable time, and although her address for the purposes of the supervised contact order on 2 August 2005 was at P in Tasmania, her address for the purposes of the consent orders on 4 October 2005 was care of a firm of Queensland solicitors.
It appears that on the day that the consent order was made (4 October 2005) she was not represented by those solicitors. However, it is clear that at some time between the supervised contact order (2 August 2005) and the consent orders made on 4 October 2005, she was legally represented and legally advised. Indeed, paragraph 43 of her affidavit filed 17 December 2007 shows that she took some legal advice. Consequently, I find it difficult to accept her version of events about how those orders came about.
Be that as it may, it is clear that the father was imprisoned for the offence of unlawful carnal knowledge with a child under the age of 16, to which he pleaded “guilty”. I cannot go behind that conviction. Although he says that he would have preferred to plead “not guilty” and that his solicitor changed firms (which has been confirmed), it is clear he did plead guilty and that conviction stands.
However, his criminal record is before the court and that is the only serious offence of which he has been convicted. The other offences are traffic offences. On one occasion he was given probation and it would appear he breached that probation and was subsequently brought back before a court on a breach of an intensive correction order.
Although I accept Mr Rolfe's explanation of his current situation, the mother said that at some time in January he had said to her that there was a possibility he would be going back to gaol. He may well have said that but it seems that on 30 January 2008 that situation was resolved because he was granted parole as and from that date. That was for two months which has now passed, so as things stand at the moment, he has an unexpired term of the suspended sentence for carnal knowledge offence that was imposed on 8 October 2007. If he offends again, he may be brought back before a court but as things currently stand, he is free in the community.
The mother makes much criticism of the father, including:
·the state of his house;
·the state of the children;
·the behaviour of the children; and
·his alcohol consumption.
When I looked at the subpoenaed material provided by Queensland Police, it does suggest that in some instances the mother was as involved as the father in their disputes.
There is one clear suggestion by the police in relation to an incident in the latter half of 2005 where they were of the view that the mother's complaint was vexatious. I think the word “vexatious” is used approximately four times in that police report. (However, I do note that the police were unable to correctly spell “vexatious” on any one of those occasions.) As a result, the police took matters no further.
It is clear that there was some form of domestic restraint order taken out by the father's partner from whom he is now separated and, as was pointed out by Mr Rolfe, there is nothing in his record to suggest that he has ever breached any such order.
I was also referred to the documents subpoenaed from the C Child Safety Service Centre (i.e. from the Department of Child Safety). I accept what Mr Rolfe says, that it would appear that most of the notifications were made by the mother and it also appears that the Department did not have any cause to take action.
It is also clear from those documents that the mother had “pulled the wool over the Department's eyes” by suggesting that she had a right to take the children from Queensland to Tasmania, when in fact it is quite clear from the Orders of 4 October 2005, which is Annexure “B” to her own affidavit, that she had no such right.
Indeed, there was a specific restriction that she should not remove the children from Queensland, because paragraph 5 of those Orders provides that the children were not to be removed outside a 200-kilometre radius of the father's residence, and paragraph 6 provides that neither party relocate in excess of 75 kilometres.
It is clear that the mother has relocated more than 75 kilometres and that has clearly been something of her own doing. However, there was a restriction that the children were not to be removed.
I note from paragraph 12 of those Orders that neither parent was to discuss adult issues involving the parties in the presence of the children or with the children directly. It seems to me that the mother may well have contravened that order as well by informing the children of their father's conviction. He and his former partner had simply told the children that the father was away working when he was in prison.
It is clear that on 15 October 2007, when the mother filed her handwritten affidavit, she knew the father was going to be in prison and it is clear that she subsequently decided to take the law into her own hands by simply travelling to Queensland and removing the children from the father's partner.
I do not believe that the father can be severely criticised for leaving the children with his partner. His partner had been living in the household prior to his incarceration. On his evidence, and there is no evidence to contradict him, he was not expecting to go to prison on that particular day, so he had no foreknowledge of the fact that he would not be home that evening. He says he was talked into a “guilty” plea.
He is stuck with that guilty plea and with his conviction, but his explanation about the arrangements, which were no doubt made somewhat hastily, is a plausible explanation.
In relation to the mother's complaints about the state of the father's household and his capacity to look after the children, it appears that she (and possibly others) have made numerous complaints to the Queensland Department of Child Safety. However, none of those have been acted upon.
It is the mother's position that the children are well settled here and that they have improved dramatically in her presence. I will return to that shortly.

The parties’ proposals

The proposal put forward by the mother in her application for the children to spend time with the father simply says "as agreed", but in paragraph 40 of her latest affidavit she says she is prepared to fly with the children to Queensland approximately three times per year on the basis that all airfares are shared between the parties. She proposes that the children spend five to six days with the father at his father's house and that his father be present at all times. She also says that she would encourage the children to communicate with the father on the telephone and would be happy to send correspondence that she receives from their school.
The father's proposal is that essentially the children be returned forthwith to live with him and that the mother spend time with them on the bases set out in his Response. He puts forward two proposals in relation to the mother spending time with the children. One is based on her living more than 150 kilometres from his residence and the other within the 150 kilometres. I will deal only at this point with the proposal relating to more than 150 kilometres because it is quite plain she is living considerably more than 150 kilometres away. That proposal is:
·for half of all the gazetted Queensland school holidays being the first half in 2008 in odd and even numbered years and then the second half in 2009 in each odd numbered year;
·by telephone twice a week, on each of their birthdays, the mother's birthday and Mother's Day; and
·at Christmas, a proposal which alternates to allow her time on Christmas Day in one year and at another other time over the Christmas period in the other years.

Discussion

There are clearly quite a few contested facts in this matter. The mother claims a history of domestic violence. That does not appear to be borne out to the extent that she claims by the police documents, and I have already mentioned the fact that the police were of the view that perhaps her complaints on at least one occasion were vexatious.
The mother also claims that the children were living in terrible conditions in the father's home and that the children's conditions, and indeed their behaviour, have improved dramatically since coming into her care late last year. In my view the material the mother filed herself does not confirm that.
To her latest affidavit she annexes a report from a Dr T from the B General Practice. He saw the children on 7 December last year. The children were both on the 50th percentile on height and weight and it would appear that there were no particular matters for Dr T to be concerned about. It was suggested by the mother that C might have some speech difficulties. Dr T said that his speech seemed reasonable at the time and the mother was to monitor it and return for a review. No return has been documented so I assume his speech is within acceptable bounds.
There was a suggestion of a possible worm infection in relation to K. Dr T states that he suggested treatment for threadworms and has not seen him since. There is no suggestion that the father is in any way responsible for the worm infection and it seems to me that the children get worm infections in the best regulated households.

The section 60CC factors

Primary considerations

It seems to me that in terms of the primary considerations it is clear that these children should have meaningful relationships with both of their parents. It does seem to me that to an extent the mother has made that more difficult by living in Tasmania after consenting to Orders in Queensland that the children live with their father in Queensland and that the children not be removed from the general area of the father.
In terms of the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, it seems to me that I have a lot of unsubstantiated allegations (at this point) with no corroborative evidence of abuse, neglect or family violence. The mother has made those allegations but she has not produced any corroborative evidence.

Additional considerations

It is my view that the views of the children in relation to where they should reside would be one that would not normally be taken into account in relation to children of these ages of five and three and three-quarters.
In terms of the relationship with the parents, I really find it very difficult to accept that the father would have anything else but a good relationship. The mother left the children with him from 2005 until the end of 2007 when she removed them. It is quite obvious she did that unilaterally with foresight, because she filed an application in this Court and then took the law into her own hands.
I have no doubt that the children's relationships with the mother, with her partner and with L have improved over the time that they have been with her and obviously those relationships obviously need to be encouraged. However, in my view that is not the same as saying that because of those relationships they should remain in Tasmania.
I am required to look at the willingness and ability of each parent to facilitate and encourage a close and continuing relationship with the other parent and in relation to that I have some concerns about the mother.
She says in her material that the children do not even talk about their father. She has removed the children unilaterally twice and her proposal, after they have been living with him full-time, is for him to spend time with him on a supervised basis by his father, J. That seems to me to be an unrealistic proposal and gives me some concern that she will not facilitate a continuing relationship with the father. However, I do not make a finding to that effect; I simply flag my concerns.
I am required to look at the likely effect of any changes in the children's circumstances, which includes separation from either parent or any other child or person with whom the child has been living. This is a factor that clearly cuts both ways. If the children are to remain here they will not only be separated from their father with whom they have lived for some considerable time, indeed most of their lives, but they will also be separated from his family and a young half-sibling.
As I said it cuts both ways. If they live in Queensland they will be separated from the mother, their half-sibling L and the mother’s partner, S. So it is clear that whatever conclusion I come to, while the parents live in Queensland and Tasmania, there will be a separation for significant periods from one parent and other family members.
The factor relating to the practical difficulty and expense of the child spending time with and communicating with a parent also cuts both ways because of the distance between Queensland and Tasmania. It is clear that there will be expense in terms of travel either by a parent to see the children or by the children to see the parent.
It is clear to me that if the children are to travel, then they need to be accompanied by an adult. They are certainly not old enough to travel unaccompanied. I flew back from Adelaide recently and I was quite surprised at the number of children being put on planes unaccompanied. It seemed to be the start or the end of a school holiday. However, these particular children are not at the age where they can travel unaccompanied.
In terms of the capacity of each parent to provide for the needs of the children including the emotional and intellectual notes, on the surface the mother's argument that she has a better capacity because she is available full-time has some appeal. However, it does seem to me that the mother's own material is reflective of the fact that the father has a capacity to provide for the children's emotional and intellectual needs. That is in the affidavit of the teacher and I accept Mr Rolfe's argument in relation to that. In my view, that document reflects favourably upon the father.
The children were only taken to Tasmania at the end of last year. The teacher’s affidavit was sworn on 20 March 2008. K at that time had been attending kindergarten for three mornings per week for a period of about six weeks. K was said to have an amazing general knowledge for a child so young. At that time K would have been in his mother's care for a period of approximately four months. I do not accept that a child of five can acquire an amazing general knowledge in four months, so it is quite clear to me that that reflects very favourably upon the father.
His behaviour is also commented on and so from February through till late March, for the six-week period, he was not disruptive, showed no signs of bad behaviour. I not accept that a child's behaviour changes so dramatically in such a short space of time. In my view that also reflects well upon the father's care of K.
The mother makes criticism of the father's capacity in that he will be working and that he will rely upon child care and upon his mother. She also says that the mother drinks too much but provides no corroborative evidence in relation to that either.
She says that his mother has two adult disabled children also living in the household. I am provided with no detail at all as to the disabilities. I do not know whether they are intellectual or whether they are physical, or if I am provided with any detail, I am certainly not provided with much in the way of particulars as to the disabilities.

There was an incident where one of the father's brothers took one of the children to the shop. That incident is described differently by each of the parents. The mother's version comes second-hand. The father's version is first-hand. I make no finding in relation to that; indeed, I cannot make a finding because it is clearly contested. However, it relates only to one incident.
In my view there is no material before me which would suggest that I should be in any way concerned about the children being cared for, either by carers or by schools or by the paternal grandmother. Indeed, it is my view that by working in a job the father is very probably providing to two young boys a role model that is not available in the mother's household.
I have dealt with the family violence. I do not think I need to deal with that further.
In relation to the attitude to the children and responsibilities of parenthood demonstrated by each of the parents, it seems to me that I could be critical of both parents in relation to their histories.
Quite clearly the father can be the subject of criticism in allowing himself to be in a situation where he was imprisoned. The mother's situation in the more distant past seems to me to be something that could also be the subject of criticism.

Conclusion

When I consider all of these matters, it seems to me that I need to weigh up the short-term benefit that the children have received in living with their mother or the more long-term benefit that the children have received living with their father, and it seems to me that I ought to come down on the side of the father and the more long-term benefit that he has provided for the children. As a consequence I am of the view that the children ought to be returned to the father in Queensland.

(At 5.09 p.m. the matter was stood down for negotiations. At 5.42 p.m. the court was informed that the parties had agreed that the children should be returned to Queensland on Monday 21 April 2008. However, the parties had “a dispute as to the costs as to getting the children up to Queensland”. At 5.45 p.m. the matter was adjourned for further mention on 16 April 2008.)

Logistical considerations

On Monday I gave reasons why I considered that the children should be returned to their father in Queensland. I do not intend to repeat those reasons now.
Also on Monday an indication was given to the Court that the parties had reached agreement that the children would be returned on Monday 21 April 2008, but there was a dispute as to who would meet the costs of air travel and who would travel with the children. It therefore came as a surprise when Ms d’Emden indicated today that she has instructions and a grant of legal aid to appeal.
In my opinion, it logically follows that if I conclude that it is in the interests of the children to be returned to their father, it must therefore be in their interests to be returned to their father within a reasonable time.
My understanding of the law is that it is simply not possible to file an application for a stay of orders until such time as an appeal is lodged. One cannot file an application to stay orders based simply upon an intention to appeal. There must be an existing appeal on foot.
It is now Wednesday afternoon at a few minutes to four and it seems clear that, if I was to order that the children be returned to the care of the father at Launceston airport or anywhere else in Launceston this coming Sunday, then that would frustrate the appeal process and any application for a stay of my orders. Certainly, it would frustrate a stay application if the mother complies with the order (which of course she is bound to do).
Consequently I am of the view that a reasonable period would be for the children to be returned to the father on the following Sunday; i.e. Sunday 27 April 2008.
I make the assumption that a similar flight which he was able to get this Sunday will arrive in Launceston on that following Sunday as well. So it seems to me that if handover is to be at the Launceston airport, then an order that the children be returned to the father at Launceston airport at 12.30 pm on Sunday 27 April will allow the mother time to file any appeal if she proposes to appeal, and any stay application she may wish make.
In relation to the question of whether it should be at the L Children's Contact Centre or the airport, it is my view that the airport has attraction for two reasons:
a)Firstly, the father will be coming into Launceston airport and will, if the plane is on time, arrive only five minutes before the handover time, and he would be put to additional expense and additional time. I make the assumption that he proposes to get back on an aeroplane and fly back out again. Handover elsewhere would impose additional time and therefore involve more complicated arrangements for him to get back to Queensland.
b)Secondly, Launceston airport is a public place. While these parties clearly have had their differences and difficulties in the past, but as I have said, police reports indicated that they were of the view that they were not quite as serious as the mother believed. Even though they have had difficult and argumentative times, they will be in a public place and that should provide sufficient security for the children to be handed over.
So what I propose to do then is order that the children be returned to the father by the mother on that Sunday at Launceston airport at the [X] end of the airport.

(After further discussion, it was determined that a more appropriate day for the handover of the children would be Tuesday 29 April 2008.)

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Roberts FM

Associate:

Date: