Coren & Aslett (No 2)
[2024] FedCFamC1F 216
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Coren & Aslett (No 2) [2024] FedCFamC1F 216
File number(s): BRC 1530 2022 Judgment of: BAUMANN J Date of judgment: 28 March 2024 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Parenting – Application for Review dismissed Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 25 March 2024 Place: Brisbane Counsel for the Applicant: Mr Coe Solicitor for the Applicant: Women’s Legal Service Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: ELR Law ORDERS
BRC 1530 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS COREN
Applicant
AND: MR ASLETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS:
1.That the Application for Review filed 7 February 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The parents of a little girl named X, born 2021 and now aged three years, have been in conflict about parenting arrangements for her whole life. The mother, Ms Coren, a citizen of Country C, has been pursuing a visa to remain in Australia without much support from the father, Mr Aslett, who was born in Australia. The father’s view, strongly expressed, is that since separation physically in August 2021 (when the child was an infant), the mother’s application to remain in Australia, if she can, is founded in part on false allegations against him of family violence.
BRIEF CONTEXTUAL HISTORY
The mother says she is not currently pursuing an application to relocate to Country C as her primary option. She says she would like to remain in Australia, if possible, as she believes it offers a better and more stable future for the child, as well as the fact that the father lives here and time between the child and the father can occur. The mother’s Initiating Application filed on 14 February 2022 included an application for a recovery order and that the child live primarily with her. The first “tug of war” over this child was initially resolved by a Senior Judicial Registrar when it was ordered on 15 February 2022 that X live with the mother.
Since February 2022 (and despite the father not filing a response until 24 August 2022 – despite three Orders to do so), a number of interim parenting Orders have been made which have facilitated X having regular unsupervised time with the father, including overnight time, usually with the mother’s consent. The father has not happily accepted that it is in X’s best interests that she live primarily with the mother, and effectively seeks a change of residence. This is maintained by the father, as I have indicated, by his earlier applications and by his interim application before me.
When the father, asserting the child was at risk in the mother’s care, failed to return the child to the mother as required by the interim consent Orders made on 17 January 2023, it caused a Senior Judicial Registrar, on the mother’s Application, to order on 17 March 2023 that the child be returned to the mother; restrained the father from removing the child from the daycare and suspended the child’s time with the father initially. An Independent Children’s Lawyer was appointed and a section 69ZW Order was made for the production of information from the Queensland Police Service and the Department of Child Safety, Seniors and Disability Services (“the Department”).
To her credit, the mother, in an amended Application filed 18 May 2023, again proposed X spend some alternate weekend time with the father unsupervised – a position adopted (although in a graduating unsupervised regime) by the Senior Judicial Registrar as reflected in the Orders made 25 May 2023.
When the mother, by further amended Application filed on 15 June 2023, included formally the alternate proposal of relocation (if she were not permitted to remain living in Australia), the proceedings were transferred to Division 1. A family report was prepared by Ms B and released to the parties in October 2023. As case management Judge, I caused the proceedings to be transferred to the docket of Howard J for Final Hearing.
The father again failed to return X to her mother, asserting the child was at risk in the mother’s care of at least physical harm and neglect, which caused the Independent Children’s Lawyer to seek the matter be urgently listed, before the same Senior Judicial Registrar on 30 January 2024. Curiously, although the proceedings by this time were in the docket of Howard J, the Senior Judicial Registrar on 30 January 2024 (seized of jurisdiction) essentially made orders for the mother to collect the child from the daycare immediately; restrained the father from collecting the child; discharged previous unsupervised time Orders and ordered the child begin spending time with the father supervised on a weekly basis.
I am not aware how much of this history was provided to Howard J when the matter came before him on 5 February 2024, but I infer, from the expedited trial listing his Honour gave the matter (listing the matter for three days commencing 5 August 2024), that he was anxious to get the matter on for Final Hearing. I infer his Honour must have known of the significant change that the Orders made 30 January 2024 by the Senior Judicial Registrar created in respect of the child’s time with the father (that is, moving to more limited, supervised time).
Two days after the appearance before Howard J, the father (as I accept he was entitled to do) filed a Review Application which was listed before me on 25 March 2024. The father filed the Application and pursues it as an unrepresented litigant.
Although I seriously contemplated the utility of me conducting the review hearing, and also considered, with a trial imminent, whether the hearing of the Review Application before Howard J was a better option, with the parties – the father in person, Mr Coe of Counsel appearing pro bono for the mother, and the Independent Children’s Lawyer, Ms Rayment – all ready and prepared for a hearing, I proceeded at that time.
THE REVIEW HEARING
The Application by the father, where he now seeks the child live with him immediately, and that the child spend time with the mother supervised, is a hearing de novo. The mother and the Independent Children’s Lawyer say the father’s Review Application should be dismissed and the father should take steps to begin supervised time.
The father informed the Court that because he did not agree with the Order for supervised time, he has not taken any steps to engage with the contact centre – the effect of such being that X has now not spent time with her father for nearly two months.
I accept that this has been distressing to the father – and quite possibly the child who has, since separation, spent regular, unsupervised time with the father.
RISKS IN THE MOTHER’S HOME
I tried to explain to the father that on an interim basis – and where a trial is a little over four months away, the Court is limited in its capacity to make a finding that the child is at serious risk of harm in the mother’s care, as the father asserted. The father will, of course, be able to test all the evidence (and the mother’s consistent denials) at the Final Hearing. He had to concede that he has raised – over the period since separation – his concerns about the risks to X with Police and the Department, and they have not substantiated any of his concerns. I accept that their position cannot be a complete answer, and certainly the father does not accept the outcomes of their investigations. However, the father, on the evidence, has failed to persuade me that moving the child’s primary residence to the father, at this time on an interim basis, is in the child’s best interests.
Again, although the family report is also untested evidence, Ms Rayment relies on the opinions expressed by Ms B in the family report at paragraphs 87, 94 and 95 to support her position. There is no medical evidence tendered that corroborates the father’s allegations, and mere photographs showing some small bruising (not uncommon on an active young child) is simply insufficient, of itself, to justify such a significant change in living arrangements, on an interim basis. The father also objects to where the child attends daycare, and as I understand his case, he even suggested day care is not appropriate, or may be a risk to the child. Again, this is a triable issue.
RISKS OF THE FATHER NOT RETURNING THE CHILD
The evidence demonstrates that the child loves her father and that they have a strong bond. As a result, I raised with the parties (not being bound by their proposals) whether, if the child was to continue to live with the mother, as I assess is in her best interests at this time, it would be better for X to return to the regular unsupervised time with the father, last prescribed by Orders of 25 May 2023 – being 12.00pm Tuesday to 12.00pm Thursday each week. In that regard, I note that Howard J, on 5 February 2024, discharged Order 4 of the Orders made on 25 May 2023 – namely, regarding the father paying outstanding fees owed to the child’s daycare provider. The Order made by his Honour did not make mention of the Orders made by the Senior Judicial Registrar less than a week earlier.
However, I am persuaded, on an interim basis, considering the history of retaining the child; the father’s application now, and (although untested) the father’s statements recorded in the family report, that there is a risk that if the child spends unsupervised time with the father before a Final Hearing, the father may well again fail to return the child – so certain is he that the mother is a risk of harming the child. His constant refrain is that at all times he has acted protectively. The trial will determine whether that is the case. Sadly for X, the issues of risk, whilst the focus of the trial in August 2024, means that until then, her time with the father needs to remain supervised.
CONCLUSION
For the reasons given, the father’s Review Application will be dismissed, which means that the Orders of the Senior Judicial Registrar of 30 January 2024 remain in full force and effect, until the Final Hearing before Howard J in August 2024.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 15 May 2024
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