CLIVERY & CONWAY

[2009] FamCA 1321

FAMILY COURT OF AUSTRALIA

CLIVERY & CONWAY [2009] FamCA 1321

FAMILY LAW – CHILDREN – Allegation of child abuse alleged against mother – lack of evidentiary material supportive of application – whether matter should be transferred from Canberra to Brisbane – time to be spent between child and mother

FAMILY LAW – COSTS – Costs awarded against the applicant pursuant to s 117(2A) of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 117(2A)

Goode & Goode [2006] FamCA 1346
Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Clivery

RESPONDENT: Mr Conway

FILE NUMBER: CAC 768 of 2008

DATE DELIVERED: 16 November 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 16 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Proctor

SOLICITOR FOR THE APPLICANT: Anne Marie Proctor

COUNSEL FOR THE RESPONDENT: Ms Berg

SOLICITOR FOR THE RESPONDENT: Walsh Halligan Douglas

Orders

IT IS ORDERED THAT:

1. The proceedings in relation to the final orders sought by the father in the response purporting to be filed in the Federal Magistrates Court on 16 November 2009 are transferred to the Brisbane Registry of the Family Court.

2. The orders sought in the father’s application in a case filed on 16 November 2009, except in so far as they relate to the transfer of the matters referred to in the last order to the Brisbane Registry, are dismissed.

3. The mother’s application filed on 17 August 2009 and the application in a case filed on 6 November 2009 are concluded as follows:

   a.   It is unnecessary to make the order relating to the further time that the child A will spend with her mother except to confirm that the program of weekend time for A to spend with her mother will recommence on Friday 20 November 2009.

4. The application made on an interim basis and on a final basis in the two applications referred to for compensatory contact so-called is dismissed.  (I note that the mother had in fact not had the benefit of time with her daughter for two weekends which would otherwise have been the case in accordance with Federal Magistrate Neville’s orders.)

5. Otherwise all other applications before the Court other than that generated by the response filed by the father in this Court on 16 November 2009 are dismissed and finalised.

6. The father pay the mother’s costs (not on an indemnity basis) as agreed or in default of agreement as assessed between the parties of and in respect of each of the applications herein before referred to this date. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 768 of 2008

MS CLIVERY

Applicant

And

MR CONWAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. I do not need to reaffirm the existence of the current orders but I will dismiss, for the reasons I will articulate briefly in a moment, the father's application in a case seeking the mother's application be dismissed, although in some respects I regard her application being unnecessary in the stricter sense of the word.

2. I certainly will dismiss, on an interim basis, the third order sought by the father on an interim basis, assuming that is what is intended by it.  I will dismiss as premature, and in the circumstances unreasonable, orders 4, 5 and 6 which relate to the preparation of a family report in Brisbane.  It is a matter for determination by whichever judge it is that has the responsibility for the matter Brisbane. 

3. The seventh matter is a matter that is dealt with by existing orders and it is unnecessary that I should deal with it on an interim basis; and the orders 8 and 9, which relate to interim arrangements about the time that the child will spend with her mother, are unnecessary given that I refused to dismiss the mother's application in a case and will dismiss these for the reasons I will set out. 

4. I propose to make appropriate costs orders relating to interim proceedings, but I will come to that in due course, and I propose to transfer the matter to the Brisbane Registry of the Family Court of Australia.  I have no idea why it is sought that it be transferred to the Federal Magistrates Court of Australia, and no reason has been advanced, when these proceedings are currently before the Family Court of Australia.

5. So far as the alleged abuse is concerned in circumstances where the allegations are inadequately, if not totally inappropriately, supported or unsupported by evidentiary evidence, I would not believe this is a matter which ought properly to be designated at this point as a Magellan matter and it will simply fall within the ordinary matters to be dealt with by the Family Court of Australia in the Brisbane Registry.

6. The reasons for my decision are as follows:  under the terms of the Family Law Act1975 (Cth), I am to take account in construing the provisions of Part VII of the Act relating to parenting orders, the objects and principles which are set out in s 60B. I take those matters into account without spelling them out on this occasion as the parties have been before this Court on numerous occasions and I do not believe I need to reiterate them for their benefit.

The best interests of the child

1. I am to make an order which is in the best interests of the child and I am to regard that as the paramount consideration in accordance with s 60CA of the Family Law Act 1975 (Cth). In determining what are A’s best interests, I am to take account of matters set out under s 60CC(2) which includes two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child's parents,[1] and the second is the need to protect A from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.[2]

   [1] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [2] Family Law Act 1975 (Cth) s 60CC(2)(b).

2. In this matter, each of those matters is a question for consideration by the court.  Even though these are interim proceedings it is necessary, in accordance with the determination of the Full Court of the Family Court of Australia in Goode & Goode,[3] that I should indicate that I have complied with the proper prescription set out under the Act.  I am satisfied, on the basis of the existing orders, as a result of apparently two defended hearings before his Honour Waddy J originally in 2005 and more recently before his Honour Neville FM, that there has been found to be a benefit in there being a continuing relationship between A and her mother. 

   [3] Goode & Goode [2006] FamCA 1346 (Bryant CJ, Finn and Boland JJ).

3. The precise circumstances of that and the benefit that is to be occasioned to her are matters which ought properly to be considered in more detail in the final hearing, but at the moment there is effectively an agreement by the judicial officers who have examined the matter that this should continue; the most recent of these determinations was but a few months ago. The primary basis that a reopening of the matter be sought is in accordance with s 60CC(2)(b) which is the need to protect A from, and it is suggested physical although some psychological issues are raised, harm.

The evidence

1. In this regard, the evidence before me in an affidavit filed well over a month after the matters alleged to have given rise to the concerns on the part of the father has been presented to this Court, are presented in a form which is not admissible in accordance with the ordinary rules of evidence (and even taking account of Part XIIA of the Family Law Act 1975 (Cth)), it is not appropriate that serious decisions of the sort that I am being asked to make, even on an interim basis, should be determined on this inadequate and inappropriate presentation of what are expressed to be serious matters.

2. In this regard there is no evidence upon which I could form a conclusion that one of the primary considerations must be taken into account or at least no evidence I would regard in any way as acceptable.  The other considerations which would bear upon my determination are set out in s 60CC(3).  Of these none is of particular significance at this point.  I take note of the fact that it is asserted by the father that A does not want to spend time with her mother.  I take account of the strained relationship between the parties themselves and the effect that has had on the relationship between each of them and particularly A’s mother with her.

3. I take account of the fact that there is absolutely no willingness on the part of the father to facilitate the continuing relationship between A and her mother at this point, possibly for the reasons he indicates, and I make no other comment.  I take account of the fact that the separation of A from her mother would represent, in the circumstances over the long history of this litigation, a substantial variation from the times that she has spent with her mother in the past.  I take account of the fact that there is difficulty and expense associated with any time that A spends with her mother and the parties are in dispute about the matter.

4. I take account of the capacity, or perhaps more correctly, the incapacity of each of the parents to regard objectively matters relating to A’s welfare and I take account of the fact that the father in this matter, at least on an interim basis if not otherwise, has not demonstrated, in my opinion, any level of responsibility of parenthood in his failure promptly to pursue matters before this court, but rather to, in effect, take matters into his own hands.  I take note of the fact that there are no family violence orders presently in existence and I take note of the allegation that there is family violence asserted as to having been occasioned to A but no proof thereof. 

5. Those, therefore, are the matters that it seems to me that I should take into account.  I do not believe in the circumstances that there is any proper justification for the orders that are sought on an interim basis attempting to vary the orders that have previously been put in place on a final basis. 

6. I accept on the evidence set out in the affidavit of the father that there are substantial connections between the evidence that will ultimately be determined in the proceedings before the Court, assuming, of course, that there is some evidence other than that which is presently before me, would be primarily before the Brisbane Registry of the Family Court of Australia  and I accept that Ms Proctor has reasonably, in the circumstances, conceded that there is no basis upon which she could argue effectively that a substantive dispute of the sort that is being pursued by the father could be easily or effectively pursued in Canberra and that the balance of convenience ultimately lies in the matter being determined, if it is to be determined on a contested basis, in Brisbane.

Discussion

1. In this regard, there is a failure on the part of the father's primary application set out in his interim application about the way in which the matter should be approached. 

2. The question of what evidence would be presented to the Court about the matters that are asserted by the father to be in dispute are matters which should be properly considered in light of the application of the so-called rule in Rice & Asplund[4] as it has been more recently expounded in a number of Full Court of the Family Court of Australia decisions;[5] and should be considered in light of the resources available in the Brisbane Registry to determine the matters that are appropriate to be determined and the fact that A has been the subject of many interviews by a number of experts and the desirability of her being at least quarantined to some extent from the continuing disputes between her parents.

   [4] Rice & Asplund (1979) FLC 90-725 (Evatt CJ, Pawley SJ & Fogarty J).

   [5] See mostly recently Marsden & Winch [2009] FamCAFC 152 (Bryant CJ, Finn & Cronin JJ).

3. At the same time, I acknowledge that it is appropriate that the allegations are, if they were before the Court in some appropriate way, such as matters which ought to be taken into account by the Court and properly investigated.  This may well involve the application of some expert evidence, although this is a matter for determination by the judge into whose docket this matter will fall in the Brisbane Registry.

4. The other matters relating to interim arrangements about the time that A would spend with her mother do not need to be considered at this point given that, in my opinion, there is no basis for varying the existing orders pending the hearing of this matter before the court when all the evidence has been collected in an appropriate way and on a final basis.

Costs

1. I turn to the question of costs.  In this matter the original proceedings, before this court were brought about by the failure on the part of A’s father to provide the time that had been stipulated most recently by his Honour Neville FM in accordance with orders made by him quite recently.  It appears that the father has some reasonable basis for resisting this, he asserts, because of what he says were A’s complaints about what had happened to her when she was with her mother. 

2. For reasons that I have indicated the material that has been produced in support of this contention has not stood even the most cursory judicial examination. Therefore, I can only conclude in the circumstances that, notwithstanding that there has been nearly a month in which to prepare it, there is no satisfactory evidence that could have been presented at least at this point today, or at least presented in a way that was acceptable. 

3. Accordingly, I would have to say that the mother's application is a reasonable one in the circumstances, although it seeks simply a reinforcement of the existing orders and compensatory time.  I have not indicated previously in my reasons for judgment, although I did in my summary of the orders I propose to make beforehand, that I do not believe that the compensatory time sought by A with her mother is appropriate. 

4. I do not believe, on the evidence before me, that I have adequate information that would enable me to conclude that that could be satisfactorily carried out or would be practicable to adopt the wording of Part VII of the Family Law Act 1975 (Cth) in relation to other issues.[6] 

   [6] Family Law Act 1975 (Cth) s 60CC(3)(e).

5. However, notwithstanding that matter and notwithstanding the confirmatory nature of the application that is being made, in effect, in lieu of an application for contravention, it seems to me that application has substantially succeeded. I say this in light of my dismissal of the orders that are sought in the application in a case by the father and effectively substantially in his response, both to the application in a case and in his other primary application in a case itself.

6. In my opinion, there has been a fundamental failure on the part of the father, apart from the transfer of the matter to the Brisbane Registry, and he ought therefore to pay the mother's costs in relation to this matter. Neither party has sought to put before me any evidence of their financial circumstances. I know not whether either is on legal aid. Those are not factors I take into account. I do make my decision based upon the fundamental failure of the father's application against the fundamental success of the mother's and as a further matter under s 117(2A) of the Family Law Act 1975 (Cth) that they are brought about by the failure on the part of the father to comply with previous orders.

Conclusion

1. I deliver orders in accordance with my Judgment.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate:

Date: 2 February 2010