COLBROOKE & MAREET

[2018] FCCA 3397

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLBROOKE & MAREET [2018] FCCA 3397

Catchwords:
FAMILY LAW – Interim parenting application – mother’s unilateral relocation to D Region in Queensland – mother asserts family violence as reason for urgency –child’s best interest – child to return to the H Region in New South Wales.

Legislation:

Family Law Act 1975, ss.60B(e), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(3)(h), 60CC(6), 61F, 65D, 67N, 68P, 69ZL

Cases cited:

Kyriakos& Kyriakos & Anor [2013] FamCAFC 22

Bar-Mordecai v Rotman & Ors [2000] NSWCA 123
Sayer & Radcliffe & Anor (2012) 48 Fam LR 298
Langley & Folett [2016] FamCA 137
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66
Carver & Hanh [2014] FamCA 470
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286

Applicant: MR COLBROOKE

Respondent: MS MAREET

File Number: WOC 357 of 2018

Judgment of: Judge Tonkin

Hearing date: 5 October 2018

Date of Last Submission: 5 October 2018

Delivered at: Wollongong

Delivered on: 5 October 2018

REPRESENTATION

Solicitors for the Applicant: MDV Family Lawyers

Solicitors for the Respondent: BDG Legal

ORDERS (AS AMENDED ON 20 NOVEMBER 2018)

1. The mother’s objection to the subpoena directed to the Tweed Hospital is hereby dismissed. The parties and the legal representatives for the parties may inspect any material produced by the Tweed Hospital.

2. The mother shall, by 22 November 2018, return with the child [B] born … 2018 (“the child”) to the H Region in New South Wales. The mother shall temporarily reside at Town C at her mother’s home.

3. Thereafter the mother is restrained from leaving the H Region in New South Wales until further Order.

4. Until further Order the child shall live with the mother.

5. Forthwith both parties shall register at the Family Counselling Service or such other changeover facility as may be available for the purposes of Order 6 below.

6. On 23, 26 and 28 November 2018 the mother shall deliver the child to the supervised changeover centre at a time to be nominated by the supervised changeover service for the purposes of the father spending time with the child for a period of 30 minutes with the father to be accompanied by the paternal grandmother on at least the first occasion.

7. To give effect to order 6 hereof, the mother or her agent shall deliver the child to the supervised changeover centre at the commencement of time and the mother or her agent shall collect the child at the conclusion of time.

8. The father is restrained from attending upon or approaching the mother and the maternal grandmother’s home or such other address where the mother resides as advised by her solicitors.

9. Pursuant to section 68P of the Family Law Act 1975 these orders are inconsistent with a temporary protection order namely an interim order made at Town G by Magistrate H on … July 2018 in that these orders provide for the father to spend time with the child on 23, 26 and 28 November 2018 and for the parties to communicate through the “Our Family Wizard” app with respect to the child.

10. On or before 22 November 2018 both parties shall file and serve an updating affidavit and a financial statement.

11. The parties shall communicate through the “Our Family Wizard” app with respect to the child.

12. The mother shall forthwith produce a copy of her lease to the father’s solicitor.

13. The mother shall communicate with the father through her solicitor regarding any requirement of him to assist her with any accommodation costs should she find independent accommodation in the H Region in New South Wales.

14. Pursuant to Section 11F of the Family Law Act the parties shall attend a reportable child dispute conference with a family consultant in the Canberra Registry in relation to the child [B] born … 2018 on 14 January 2019 with the mother and the father to attend at 9.00am. The child is not required to attend the conference. A written memorandum is requested to be available as soon as practicable following the conference.

15. The proceedings are adjourned to 29 November 2018 at 10.00am at the Wollongong Registry for interim hearing with respect to the following issues:

    (a)being the costs of the mother’s independent accommodation in the H Region in New South Wales noting she seeks a contribution from the father; and

    (b)any contribution she seeks from the father towards any costs incurred for terminating her lease due to expire  21 January 2019; and

    (c)any further order with respect to the father spending time with the child.

16. The parties are to notify the Registry if they have any safety concerns in relation to any Court attendance no less than 14 days prior to that attendance.

17. In the event the matter DOES NOT require an interim hearing, the parties shall notify Judge Boyle’s Associate by email on [email protected] no less than 1 week prior to the listing.

Amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 20 November 2018 at orders 2 and 14 to reflect the child’s correct name.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 357 of 2018

MR COLBROOKE

Applicant

And

MS MAREET

Respondent

REASONS FOR JUDGMENT

1. These reasons were requested by the respondent to the proceedings[1]. The interim hearing proceeded on 5 October 2018 during a busy duty week wherein the Court dealt with 99 matters in four days many of which were interim hearings requiring interim determination. The Court was in addition required to sit in two different Court venues. I raised a concern with both parties regarding the deficiency in the evidence to support the parties competing interim proposals. The parties were advised that the Court intended to rely on the discussion between the legal representatives and the Court with respect to the reason for making interim orders. Reasons were given in short form pursuant to Subsection 69ZL(1) of the Family Law Act 1975 (Cth) (“the Act”).

   [1]  In Kyriakos & Kyriakos& Anor [2013] FamCAFC 22 Forrest J at [68] indicated that it is accepted principle that a judicial officer has the right to revise reasons that were delivered ex tempore. In support of this contention he relied on the decision of In Bar – Mordecai v Rotman & Ors [2000] NSWCA 123 wherein the NSW Court of Appeal in the joint judgment of Sheller, Stein and Giles JAA said at [193] – [196] “It is always possible, indeed proper, for a judge to revise ex tempore reasons. As long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.”

2. The father filed an initiating application on 4 June 2018 seeking an order pursuant to section 67N of the Act for information regarding the location of the child [B] born … 2018 (“the child”) in addition to parenting orders.

3. Orders were made on 19 June 2018 ex parte for a location order to issue with respect to the child, the matter was listed for directions on 31 July 2018 and for interim hearing on 4 October 2018. On 19 June 2018 the father’s solicitor tendered an email dated 18 June 2018 from the mother advising of the name and birth date of the child (Exhibit A1). She did not disclose her location. She sought an adjournment to obtain legal advice and an order that the father not contact her and the parties participate in mediation at separate locations.

4. On 31 July 2018 the mother through her solicitor participated at the directions hearing by telephone. She filed a response and affidavit on 30 July 2018 and sought an order that the proceedings be transferred to the Brisbane registry, an Independent Children’s Lawyer be appointed and the child live with the mother. She expressed strong opposition to the proceedings continuing in the Wollongong Registry. The mother’s solicitor indicated there was likely to be a challenge to the father’s paternity. She was advised to file an application for parentage testing and all matters were adjourned for interim hearing to 4 October 2018. An order was made for the mother to attend Court on the next occasion in person.

5. The mother applied to attend the interim hearing via video link. To accommodate that requirement the hearing was moved to 5 October 2018. The mother remained on the D Region in Queensland with the child. Both parties were represented by solicitors on that occasion with the mother and her solicitor appearing via video link. Difficulties arose during the proceedings regarding the tendering of exhibits.

Issues

1. (a)     Whether the child should return to live in the H Region in New South Wales or remain in the D Region in Queensland;

   (b)     What time (if any) should the father spend with the child;

   (c)     Allegations of family violence;

   (d)     Whether the proceedings should be transferred to Brisbane; and

   (e)     Whether paternity is in issue.

Background

1. The parties commenced a relationship in May 2017. At the time both parties were living in Town F and the father was employed as a professional. He obtained employment in the Northern Territory and invited the mother and her child from a previous relationship [X] (four years) to join him. The parties lived together in the Northern Territory from 31 July 2017 until the father left that job. The parties returned to Town F in September 2017 the mother arriving five days before the father. She deposed separation occurred on 13 September 2017. The father said the mother was pregnant with the parties’ child when they separated.

2. The parties communicated via text message until February 2018. The father attempted to engage in mediation at the Family Relationship Centre in Town F with the mother to make arrangements with respect to the parties’ unborn child. The mother refused to participate. She said she did not feel safe.  On 16 February 2018 a section 60I certificate was issued. On 20 February 2018 the father caused his solicitor to write to the mother regarding arrangements for the baby. The mother acknowledged that she had received the letter but did not respond.

3. Without notice to the father’s solicitor the mother left Town F for the D Region in Queensland on 21 March 2018. She deposed in her affidavit that she “fled Town F in fear for her safety and that of her daughter and unborn baby” and alleged the father had constantly stalked her and threatened to kill her.

4. The father deposed that he was in contact with the mother’s family regarding the imminent birth of the child. He was advised by the mother’s family that the parties’ baby was due on or about 20 May 2018. In April 2018 he observed the mother’s family “clearing out” her unit in Town F. By the end of May 2018 he observed that the mother’s former unit was listed for rent.

5. The father commenced proceedings on 4 June 2018. At that time he was not aware whether the baby had been born and sought an order for information regarding the mother’s location.

Documents relied on

1. The Court read and considered the parties very comprehensive case outlines, the affidavits filed in the proceedings and documents tendered in evidence.

Legal principles

1. When a parent wants to relocate the residence of a child that matter is to be determined, like any other parenting matter, in accordance with the statutory provisions under Part VII of the Act. The accepted approach to “relocation” cases was referred to by the Full Court in Sayer & Radcliffe & Anor (2012) 48 Fam LR 298) and cited with approval by Faulks DCJ (as he then was) in Langley & Folett [2016] FamCA 137.

2. The applicant father referred to the decision in Morgan & Miles 2007 FamCA 1230 per Boland J at [77], [84] and [88] with respect to the challenges raised by interim relocation applications. I adopt her Honour’s reasoning in that matter.

3. In C & S [1998] FamCA 66, the Full Court (Ellis, Lindenmayer & Warnick JJ) indicated per Warnick J:

   “In my view it is clear that the interests of any child ….. are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”

4. The mother was aware the father expressed a wish to be involved in parenting the child. Both parties lived in the Town F region prior to the mother’s relocation to the D Region in Queensland.

5. In Carver & Hahn [2014] FamCA 470, Cronin J considered an interim application by the mother to return to her native Canada with the child pending ultimate determination of the child’s living arrangements. His Honour said:

   “[20] In Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 the Full Court observed that the procedure for making interim parenting orders is an abridged process where the scope of the inquiry is significantly curtailed.  The Court observed that where findings of fact could not be made, the Court should not be drawn into issues relating to the merits of the substantive case which required findings to be made and where those findings were not possible.  Despite the truncated hearing and the paucity of evidence, the Court still had to make a determination based on the best interests of the child.  Thus, in Goode (supra), the Full Court indicated that the Court should:

   ·   Identify the competing proposals;

   ·   Identify the issues in dispute;

   ·   Identify any agreed or uncontested relevant facts;

   ·   Consider the matters in s 60CC that are relevant and if possible, make findings.”

Assessment of the evidence

1. Part VII of the Act deals with orders relating to children. Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper. Section 60CA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.”

2. The matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the Act. Those matters include primary considerations and additional considerations. There are two primary considerations (section 60CC(2) of the Act) namely:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

3. The mother was on notice that the father wanted to participate in parenting the parties’ unborn child. He had not met the child and was not advised of his birth when he commenced proceedings. In her letter dated 18 June 2018 (Exhibit A1) the mother proposed the parties engage in mediation I infer for the purpose of the child establishing a relationship with the father. In her later affidavit she sought that the location orders be discharged and the proceedings be transferred to Brisbane. No orders were sought for the father to be introduced or spend time with the child. I infer from her affidavits that she did not support the father establishing a relationship with the child. She explicitly stated that she feared that the father had commenced proceedings to carry out his threat to kill her. She wished to prevent him from discovering her location.

4. The mother raised allegations of family violence against the father both during their relationship and post separation (mother’s affidavit filed 20 August 2018 paragraphs 48 to 71). The allegations centred around verbal abuse and intimidation. The mother deposed that the father approached her in a supermarket in an angry and aggressive manner on 19 March 2018, threatened to kill her, engaged in stalking and hit her daughter [X]. She reported the stalking conduct to police and this was investigated. She did not report the “threat to kill” leaving for the D Region in Queensland on 21 March 2018 in fear for her safety. The mother asserts the father admitted his conduct relying on text messages he sent that made reference to his “negative, unacceptable behaviour” and having made “the biggest mistake of his life.”

5. The father deposed that the parties argued during the relationship. He denied he approached the mother on 19 March 2018 advising that he had a witness who could verify he spent the day working. He denied approaching her home or attempting to enter her property. He denied threatening to kill her. From February 2018 he communicated with the mother via his solicitor. He denied the mother was fearful of him. He was advised through his solicitor on 27 February 2018 that the child was a boy and the mother had indicated she wished to move away from Town F.

6. He denied he physically or verbally abused the mother and denied she and the child were “evacuated” from Atitjere. He agreed that the parties argued on the day they separated and he asked her to leave the house. The father’s employer provided the mother with accommodation and transport to Alice Springs to facilitate her return to Town F. He admitted smacking [X] with an open hand and advised the mother had made no complaint in this regard.

7. Regarding the allegations of stalking a police incident report was tendered (Exhibit A5). The allegation was investigated by police and the record indicates that “police did not find evidence of stalking or any other offence.” The police record indicates that the enquiries made by the father involved trying to obtain information about the imminent birth of his child and offering support.

8. The father tendered two cards (Exhibit A6) given to him by the mother in August 2017 and on Father’s Day in September 2017. The cards indicate that the parties then had an affectionate relationship at that time and the mother regarded the father as supportive of her, her daughter and their unborn child. The mother acknowledged in the cards that the applicant was the father of their child.

9. The allegations of family violence cannot be determined on an interim basis particularly as that evidence is significantly in issue and denied by the father. The father was not charged with stalking. No other alleged offences were reported to police. He has no criminal record. No allegations were raised about the father using illicit drugs. He denies abusing alcohol. The mother did not apply for a Domestic Violence Order prior to relocating to the D Region in Queensland but obtained an order on 26 July 2018 nominating herself and the children as protected persons following the commencement of proceedings. I am unable to make any findings regarding family violence at this stage of the proceedings however I intend to take a cautious approach such that any order I make should ensure the mother’s safety and the safety of the children. 

10. The additional statutory provisions under section 60CC(3) in so far as they are relevant are addressed as follows:

    (a) Wishes

11. The child’s wishes are not a relevant consideration

    (b) The nature of the relationship of the child with each parent and other persons

12. The child was born on … 2018 in a hospital in Town C.  The Maternal and Newborn Discharge Summary (Exhibit A1) indicated that he was pre-mature and discharged on … 2018. The mother indicated he had some medical issues that required surgery. At the time of the interim hearing he was almost six months old. The mother is his primary carer and he is being breast fed. He is totally dependent on his mother for his existence. The mother has a supportive family in Town F who assisted her to relocate her furniture to the D Region in Queensland and were present in Queensland during the interim hearing on 5 October 2018 caring for the children.

13. I infer from the mother’s email dated 18 June 2018 and the sentiments contained in the birthday and Father’s Day card that there was no issue regarding the paternity of the child. In her affidavit filed on 30 August 2018 the mother deposed that the applicant “may be the father of the child.” The mother’s solicitor raised a potential issue on 31 July 2018 and was advised that any application for Parentage Testing would be determined at the interim hearing. No application was filed. I infer from the text message exchanges between the parties annexed to the mother’s affidavit that the mother did not dispute paternity of the child. I accept the father’s evidence that he is the child’s father.

1. The father identifies as Aboriginal. Cultural issues are likely to be important in this matter. Sections 60B(e) and 60CC(3)(h), and subsection 60CC(6) and section 61F of the Act are of significance however there is insufficient evidence before me to further consider this issue other that the child has a right to enjoy his Aboriginal culture with other people who share that culture. The order I intend to make will facilitate the child meeting his father and paternal grandmother. The father has not met the child and has no relationship with him. The mother in relocating has placed significant distance between the child and his father. She provided no explanation as to why she chose to move to the D Region in Queensland other than she has “family and friends” there. The mother’s parents live in Town F as did she prior to her relocation.

2. In my view there is a benefit to the child having a relationship with both his parents subject to ensuring the safety of the child and any other person. To establish a relationship given his age, short, frequent periods of time with carers other than his primary carer is in the child’s best interests. Given the allegations raised by the mother and potential issues of safety any arrangements for the child to spend time with the father should initially be supervised.

3. No proposal was made by the mother to facilitate the father meeting or spending time with the child in a safe environment in Queensland. The father proposed that the Family Counselling Service supervised contact facility in the H Region in New South Wales was available and could provide a safe and secure environment for supervised time. The paternal grandmother indicated her willingness to be involved in any initial meeting between the father and the child should the child become unsettled. She is an experienced parent.

4. I intend to make an order that the child reside in the H Region in New South Wales with the mother until further order and that the mother return with the child on or before 22 November 2018. They will temporarily reside with her mother. The child shall spend 30 minutes on three occasions with the father prior to the next adjourned date supervised at the Family Counselling Service centre on 23 November 2018, 26 November 2018 and 28 November 2018 and is to be further consideration of the spend time arrangements on 29 November 2018. I decline at this stage to transfer the proceedings.

5. The mother has a very supportive maternal family who live in Town F. They are available to assist her should the child be required to return to Town F. In my view it is in the child’s best interests that he be provided an opportunity to have a relationship with both his parents until the issue of relocation can be properly considered on a final basis.

   (c) The extent to which the parents have taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children and to spend time with the children and communicate with them

6. The father attempted to communicate with the mother after separation regarding the birth of their child. He advised her that he wanted to be part of the child’s life and would provide both physical and financial support. The mother ceased all contact with the father in about November 2017. She unilaterally relocated to the D Region in Queensland prior to the child’s birth making time arrangements for the child’s involvement with his father extremely difficult. She did not advise the father of the child’s birth until after he had filed his initiating application. She opposed the father discovering her location and made no proposal for the father to spend time with the child. The parties have no open lines of communication. The mother’s material indicates she is hostile to the father though she argues she has a proper basis for this in that she is a victim of domestic violence and has been subjected to stalking and threats. She does not support the child having a relationship with his father. I have no confidence that should the child remain on the D Region in Queensland with his mother she will facilitate the child knowing and/or spending time with his father.

   (ca) The extent to which each of the parents has fulfilled or failed to fulfil the parents obligations to maintain the child

7. The mother provides for the child’s needs. The father advised the mother that he was willing to support the child financially and offered to buy things for the baby after separation and pay the mother’s electricity bill. She declined the offers. The father is employed and has the capacity to assist the mother financially. The mother’s solicitor indicated that the maternal grandmother had supported the mother financially providing her with funds to obtain a rental premises and moving her furniture to the D Region in Queensland. I anticipate the maternal grandmother will again financially assist the mother. The evidence regarding the costs involved in the mother returning the child to Town F was inadequate. Thus I intend to make orders that the mother return the child to the H Region in New South Wales and temporarily reside with her mother. In the event that the mother requires accommodation independent of her parent’s home, that matter is to be determined on the adjourned date with the parties to file financial statements. The Court is of the view that the father should contribute towards the mother’s accommodation costs until the matter can be resolved. In addition the issue regarding who should bear the cost of the mother ending her lease early is also adjourned to the next court date.

   (d) The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either parent or any other child or other person with whom the children have been living

8. It is not proposed that the child be separated from his mother for any length of time. The orders require the mother to return the child to the H Region in New South Wales and for the child to remain in his mother’s primary care and spend short periods of time with his father at a supervised contact centre which will ensure the mother’s safety. Such an arrangement is in my view in the child’s best interest in the interim. The child is very young. His security is derived from being in his mother’s care. I am confident that the mother will have the support of her family once the child returns to the H Region in New South Wales. It may be that the mother is unhappy about having to return to Town F. Her safety is assured by registering the Domestic Violence Order in N.S.W. though the father’s solicitor indicated this is no longer a requirement. The orders I intend to make are likely to have a financial impact on the mother’s initial relocation back to Town F. This aspect of the case will be considered on the adjourned date.

   (e) The practical difficulties and expense of the children spending time and communicating with each of their parents and whether than difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

9. The mother made no proposal for the father to meet or spend time with the child in the D Region in Queensland. She opposed the father knowing her location. Given the distance between Town F and the D Region in Queensland it is not reasonably practicable for the child to spend short, frequent, regular time with the father whilst living with his mother on the D Region in Queensland. The cost of travel and distance involved prohibits regular time with the child. Given his age it is unlikely the child will establish a relationship with his father without spending short, regular, frequent time.  The parties do not communicate. It is unlikely the mother will facilitate time or communication should she remain on the D Region in Queensland given her attitude to the father. Communication via Face Time and the like is not an alternative given the child is non - verbal and reliant on establishing a relationship via face to face interaction with any carer.

10. The issue of where a parent lives on a permanent basis is yet to be determined. It may be that at a final hearing both parties live and spend time with the child on the D Region in Queensland. I am unable to determine that matter on an interim basis.

    (f) The capacity of each of the child’s parents and other any person to provide for the needs of the child, including the emotional and intellectual needs

11. The mother has a child from a previous relationship. The father raised concerns about the mother’s mental health. I am unable to make any finding in that regard. The mother has experience as a parent in caring for her older child. The father is a new parent. His capacity as a parent is yet to be tested however the orders I make will ensure the safety and well - being of the child given that the orders provide at this stage for short, frequent supervised time.

    (i) The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

12. The mother does not support the father having a relationship with the child she says due to the father’s abusive and violent conduct towards her. I am unable to determine those issues at present. In my view there is a benefit to the child establishing a meaningful relationship with his father whilst ensuring his safety. Such a relationship cannot be established with the father unless both parents live in close proximity of the other. The facts of this case do not support a regime where the mother would willingly facilitate the child spending time should the father visit the D Region in Queensland.

    (l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

13. These are interim proceedings. It is likely that the mother will pursue her application to relocate on a final basis. As such there is likely to be further litigation in this matter.

Equal shared parental responsibility

1. I am unable to make any findings with respect to family violence however in my view it is not in the child’s best interests to make an order for equal shared parental responsibility on an interim basis. The mother raises issues of family violence yet to be determined. She seeks an order for sole parental responsibility. I decline to make any interim order for parental responsibility.

Conclusion

1. Until 21 March 2018 the mother, the father and both parents extended family lived in the H Region in New South Wales. Both the mother and father’s extended family have expressed a willingness to support each parent and the grandchildren. The orders I intend to make will provide the child with an opportunity to meet his father in safe surroundings and begin to establish a relationship with him. I am satisfied that those orders are in the child’s best interests.

2. I make orders accordingly.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Tonkin

Date: 23 November 2018