Corcoran and Deeter and Anor
[2020] FCCA 3630
•27 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CORCORAN & DEETER & ANOR | [2020] FCCA 3630 |
| Catchwords: FAMILY LAW – Parenting – interim care arrangements for a young child – child withheld by grandparent from parent – urgency based on unilateral disruption of established and well settled arrangements and imminent closure of borders in response to COVID 19 pandemic – interaction of child’s best interests and due process – recovery order issued. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZL, 69ZW Federal Circuit Court Rules 2001 (Cth), r.4.03 |
| Cases cited: Allesch & Maunz [2000] HCA 40 Gordon & Gordon [2015] FamCA 616 Aldridge & Keaton (2009) 42 Fam LR 369 |
| Applicant: | MS CORCORAN |
| First Respondent: | MR DEETER |
| Second Respondent: | MS YOUNG |
| File Number: | LNC 147 of 2020 |
| Judgment of: | Judge Harman |
| Hearing date: | 27 March 2020 |
| Delivered at: | Launceston |
| Delivered on: | 27 March 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms F. McCracken of Grant Tucker |
| No appearance for the First Respondent |
| No appearance for the Second Respondent |
ORDERS
Pending further Order, the child X born in 2016 shall live with her Mother, Ms Corcoran.
Pending further Order, Ms Corcoran shall have sole parental responsibility for X.
To: The Marshal
All Officers of the Australian Federal Police
All Officers of the State and Territory police forces
On the application of the Applicant, the Court orders that:
You are authorised and directed with such assistance as you require, and if necessary by force, to find and recover the child X (female) born in 2016.
You are required to deliver the said child to the Applicant Mother Ms Corcoran at a place nominated by the Officer who recovers the child pursuant to this Order.
For the purposes of finding and recovering the said child you are authorised and directed, with such assistance as you require, and if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the said child may be found.
If Ms Young again removes the said child from the Applicant mother pursuant to orders made herein on 27 March 2020, she may be arrested without a warrant.
This Order remains in force until 26 March 2021.
Adjourn the proceedings for further mention and directions to 11 May 2020 at 11:30am.
In the event that either Respondent (Mr Deeter and Ms Young) wishes to participate in these proceedings then they shall
(a)Attend at 11:30am on 11 May 2020 (noting the attendance will be by telephone or video link, to be advised by the Chambers of judge McGuire); and
(b)Each shall file and serve a Response, Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Notice of Risk not less than 7 days prior to the next Court event.
IT IS NOTED that publication of this judgment under the pseudonym Corcoran & Deeter & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
LNC 147 of 2020
| MS CORCORAN |
Applicant
And
| MR DEETER |
First Respondent
| MS YOUNG |
Second Respondent
EX-TEMPORE REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for a young lass, X, born in 2016. X is not yet four years of age, although she shortly will be.
The parties to the proceedings are numerous, comprising:
a)Her Mother, Ms Corcoran, who is the Applicant;
b)Her Father, Mr Deeter, who is the First Respondent; and
c)Her Paternal Grandmother, Ms Young, who is the Second Respondent.
The matter is heard by telephone and these reasons given in short form pursuant to section 69ZL of the Family Law Act 1975 (Cth).
Due process
These proceedings were commenced by an Application Initiating Proceedings filed on 16 March 2020.
There has been some delay in service of that material for a number of reasons.
With respect to the Father, the delay has arisen from the reality that he is presently incarcerated at B Prison. He has, however, now been served.
With respect to Ms Young, the delay relates to her having removed herself and the child to a remote location, namely, Town C. As a consequence, service have been difficult, although it has also, now, been effected by officers of Police who have travelled to the location from an adjoining location for that specific purpose.
I am satisfied, notwithstanding that the notice to each of those Respondents is somewhat brief, that they certainly have notice of the proceedings and are aware of:
a)The matter being listed before the Court today
b)The Orders that are sought by the Applicant
c)The basis upon which those Orders were sought.
It is also germane to observe that the Affidavit of Service with respect to service of Ms Young indicates that, at the time of service, Ms Young was suggested to have indicated that she was “aware of the situation”, presumably the existence of proceedings. That would be consistent with and corroborative of earlier attempts made to notify Ms Young of the proceedings by telephone, text message or other means.
Accordingly, and in those circumstances, I am satisfied that due process has been afforded to each of the respondents.
As the High Court discussed in Allesch & Maunz [2000] HCA 40, what is required to afford due process is a reasonable opportunity, in all of the circumstances, to lead evidence, to make submissions and be heard.
The reasonableness of any opportunity must be determined by reference to the facts and circumstances of each specific case. Whilst rule 4.03 of the Federal Circuit Court Rules 2001 (Cth) provides a period of 28 days from service for a respondent to file a Response, affidavit and Notice of Risk, that time can be abridged, whether by specific Order or otherwise.
In this case, I am satisfied that it is appropriate to proceed. Whilst there has not been significant notice given, (it is, in reality, as regards receipt of the documents, two days), notice of the proceedings was given by text two weeks when the matter first came before the Court.
The Application relates to the welfare of a child and, as discussed by Forrest J in Gordon & Gordon [2015] FamCA 616, particularly paragraphs 3 to 5 thereof, which I incorporate herein, the child’s best interests, if they are genuinely to be treated as paramount, must inform all decisions made by the Court, including, I am satisfied, with respect to due process. His Honour had said:
3. Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
4. Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
5. In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.
For those reasons, I am satisfied again that:
a)Due process has been afforded to the respondents.
b)Due process would be denied to Ms Corcoran if the matter did not now proceed. The Court has no ability to cause persons to attend and participate in proceedings. The Applicant need not have their business deferred continuously, merely because a Respondent fails to participate.
c)The child’s best interests warrant and require that the matter now proceed. That will be discussed with respect to the undisputed evidence.
Evidence relied upon
In dealing with the proceedings, I have read and considered each of the documents that are filed in Ms Corcoran’s case together with a document provided by the Tasmania Child Welfare Agency in response to an order pursuant to section 69ZW of the Family Law Act (supra). The request for information arises in circumstances wherein Ms Corcoran had appropriately disclosed, consistent with her obligations (see Stowe & Stowe [1980] FamCA 92), a conversation between herself and Ms Young wherein Ms Young suggested that there was an ongoing investigation into the child’s care as provided by the Mother. Thus, material was obtained from the Department.
What that material does is corroborate Ms Corcoran’s position as advanced at paragraph 17 of her affidavit. There is no ongoing investigation, nor has there ever been one.
In all of those circumstances, it would appear that the comment that was made was either mischievous or hopeful. It may be that Ms Young has communicated matters to the Department but the Department have not been concerned to act upon that information nor seen anything warranting or requiring investigation.
The young child the subject of these proceedings has, at all times since her birth, lived with her Mother.
The Father’s involvement in the child’s life has been, at best, sporadic.
The parties separated in 2016, the year young X was born. Since that time, the Father has had only minimal contact with X. Since May 2019, the Father has had little or no contact with X, having commenced at that point in time to serve the first of what are now a number of convictions with respect to a serious offence. He is not due to be released for some little time.
Since the Father commenced his period of imprisonment, there has been fairly irregular and infrequent time and communication between X and her paternal family. X would regularly see the Father’s sister, Ms D, but only occasionally see her grandmother, Ms Young. Whether that is because of her remote location on Town C or otherwise need not be determined.
What is relevant is that on 20 February 2020, an agreement was reached between the parties for X to go to the home of Ms D and to spend the weekend there. That is appropriately and frankly described by the Mother as being to provide her with some respite, although also the benefit of continuing relationships.
Thereafter, the child was not returned. A number of machinations were entered into to obtain the child’s return without success. Ultimately, a meeting was arranged on 26 February. Ms D attended. X was not with her, although the arrangement had been promised that X would be returned at that time. That is when the communications occurred regarding suggested involvement of the Department of Child safety and, again, repeated the following day. .
The matters conveyed to the Mother are simply not borne out by exhibit A. Accordingly, whilst they are disclosed by the Mother, frankly and appropriately so, they do not cause concern.
The Mother sought assistance promptly, the following if not the very same day. She was unable to obtain assistance from Police. She contacted a lawyer. What was required was undertaken in relation to applications for Legal Aid and the like.
Ultimately, with the intervention of long weekends and other events, the Application was made and presented to the Court on short notice.
The matter was adjourned on the first occasion to afford some opportunity, limited as it was, for service to be formally effected but, if not, for notice to be given.
On the second occasion, the matter was again adjourned, this time with further directions as to service and notification. Those matters have now been fully attended to.
Determination
I must have regard to section 60CA of the Family Law Act (supra) which reminds the Court that, in all that is done, the child’s best interests are the paramount consideration.
I must then have regard to the objects and principles in section 60B of the Family Law Act (supra). They do not form part of the substantive law that applies to the facts and circumstances of the case, but they do assist in understanding how those provisions might be interpreted and applied as well as dictating the general or philosophical outcome that the Court should endeavour to achieve where possible.
The Court should ensure that the child’s best interests are met by ensuring that the child has the benefit of both parents having a meaningful involvement in their life.
The effect of this child’s retention by her Paternal Grandmother is that neither parent has any involvement, let alone meaningful. The meaningful involvement that this child could have with her Mother and was having until 20 February 2020 is terminated. That would dictate support of the Mother’s Application.
There is the veiled suggestion, although not prosecuted before this Court, nor corroborated or borne out by the material produced by the Child Welfare Agency, that there is some risk to the child in the Mother’s care. I am not concerned that such risk exists or is made out.
The child must be protected from physical and psychological harm. There is no suggestion that this is a real issue in this case, save and except to the extent that it would be distressing for this young girl, already absent her Father, to now be removed from the person who has provided all of her care at all times, removed from her school, (although the pandemic has now seen school holidays move forward and, thus, attendance is no longer required), but causing her significant distress in that separation. That would support the Mother’s case.
The Court must ensure the child receives adequate and proper care. In its most negative sense, there is no concern that this would not be addressed by the child being returned to the Mother’s care.
The Court should endeavour to ensure that parents should fulfil duties and meet their responsibilities. If one extends the objects to include non-parents, as Aldridge & Keaton permits, what is clear is that Ms Young is not meeting the duties and responsibilities she might be inferred to have with respect to this child, by reference to the child’s rights as addressed in the principles, section 60B(2).
This little girl has, save where it is demonstrated, by reference to probative evidence, to be contrary to her best interests, (and thus the rights not enlivened or practised), a right to know and be cared for by of both parents and to spend time and communicate with her parents and other people significant to her care.
The only parent with whom she has been significantly communicating or engaging with, for some little time, is her Mother. That arrangement has met her needs perfectly well. That arrangement has now been terminated. That supports the Mother’s case.
The balance of rights for this child similarly support the Mother’s case. The Mother is the only parent who is presently discharging duties or responsibilities for the child. To the extent that those rights and duties might be inferred with respect to Ms Young, she is not doing so. She is not meeting the child’s right to practice a relationship with her Mother.
The only factor that might assist Ms Young in justifying the action she has taken is a right of this little girl to know, enjoy and practice her Aboriginal culture, (Ms Young and the child’s Father being Aboriginal, and, thus, the child being an Aboriginal child). However, I have no evidence to suggest that the child was not previously or, for that matter, is presently enjoying culture any better or worse than any other arrangement that has applied. Thus, it does not assist.
As the Full Court has been clear, the right to enjoy culture is not, as it were, a “trump card”. It is one of many factors to be considered in the proceedings.
In this case, the child’s clear pattern of stable, consistent care provided by the Mother and without any corroborated or demonstrated criticism of that care, must be the most significant factor. That is not to proceed on the impermissible basis, as previously set out in Cowling,[1] Griffiths,[2] Cilento[3] and Rainer & Rainer[4] and as expressly disavowed in Goode & Goode[5] and Marvel & Marvel (No. 2),[6] of determining past arrangements and restoring them.
[1] [1998] FamCA 19.
[2] (1981) FLC 91-064.
[3] (1980) FLC 90-847.
[4] (1982) FLC 91-239.
[5] (2006) FLC 93-286.
[6] [2010] FamCAFC 101.
Those arrangements are, and always remain, relevant. They are arrangements that have met the child’s needs well and have met them much better than the present arrangement whereby the only parent able to practice a relationship with the child, without any apparent justification, is cut out.
I must then have regard to section 61DA of the Family Law Act (supra) and the presumption of equal shared parental responsibility. The presumption applies between parents and only parents. Thus, Ms Young could not assert that the assumption provides any assistance to her. There is thus no application of section 65DAA of the Family Law Act (supra) and the mandated consideration of equal or substantial and significant time in favour of Ms Young before other time arrangements. That being so, I will deal with all issues by reference to section 60CC of the Family Law Act (supra), to which I now turn.
I must commence with the primary considerations, being the benefit of the child of a meaningful relationship with both parents and the need to protect the child from physical or psychological abuse.
There are two matters of importance. Firstly, protection is to be prioritised against all else. Subsection (2A) makes that clear. Secondly, as the Full Court was clear in Burton & Churchin & Anor,[7] the primary consideration in section 60CC(2A) applies only with respect to parents, biological or adoptive or deemed. Whilst many of the provisions of the Family Law Act (supra), whether they refer specifically to parents or not, can apply more broadly, (as Aldridge & Keaton[8] makes clear), the benefit to this little girl of a meaningful relationship with her Mother and Father is all that is required to be considered at this time. She is not presently having a relationship with either. She cannot, in any meaningful sense, have a relationship with her Father. She was with her Mother and she should be returned. That she is not is unexplained and would appear to be a completely unnecessary interference in and disadvantage to this child’s life. It’s strongly supports the case the Mother mounts.
Additional considerations
[7] [2013] FamCAFC 180.
[8] (2009) 42 Fam LR 369.
Views
There is no evidence the child desires to leave the Mother’s care. One might infer from the care arrangements that have applied for this child since birth that she would be significantly distressed by the removal and, until this morning, the complete termination of any practice of relationship, even by telephone or other forms of communication. I am satisfied this factor supports, on that inference alone, the Mother’s case.
Nature of the child’s relationship with each parent and other persons
The child’s relationship with Ms Young had been practised frugally and infrequently. In those circumstances, the child’s strong relationship with the Mother must triumph, and it supports the Mother’s case.
The extent to which each parent has taken or failed to take the opportunity to participate, decision-make, spend time and communicate with the child
The Mother has not so failed. What is relevant is perhaps more relevant is that which was contained in the pre-June 2012 drafting of the Family Law Act, the extent to which any person has interfered in a parent’s capacity to do so. Ms Young has.
It is not a punitive response but the factor supports the child’s return to the Mother’s care so that this interference can end.
Obligations to maintain the child
Not relevant. Ms Young does not have any such obligation.
The likely effect of change
This is positive if this child is returned to her Mother’s care. It is where she has always lived in arrangements that have served her needs well. In these troubling and distressing times, it is the arrangement that should be in place.
Practical difficulty and expenses
This is manifest if Ms Young continues to live on Town C. It is very difficult, from the Region E, for that relationship to be practised with any frequency, particularly with present and forthcoming border closures and restrictions in response to the COVID-19 pandemic. The child should forthwith, and whilst it can still occur, be returned to the Mother’s care.
Capacity of each parent and others to meet the child’s needs
There is no suggestion that the Mother cannot and has not done so in the past. There is no action by child welfare agencies nor any application to this Court. The child should be returned.
The balance of factors similarly support the Mother’s case. There is no allegation of family violence as between the Mother and Ms Young, but there certainly are with respect to Mr Deeter.
Mr Deeter is not in a position to play any active role in the child’s life. His attitude would appear to have been subverted towards his criminality.
Ms Young’s attitude would appear to be to take the child to a remote location and then refuse any practice of relationship between child and Mother.
All of those matters, again, support the Mother’s case. I am, accordingly, satisfied that Orders can and should be made and sought by Ms Corcoran. Accordingly, I make Orders as follows.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the ex-tempore reasons for judgment of Judge Harman
Associate:
Date: 17 February 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Injunction
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Remedies
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Procedural Fairness
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Costs
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3
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