Crouper & Mitchell
[2014] FamCAFC 246
•2 December 2014
FAMILY COURT OF AUSTRALIA
| CROUPER & MITCHELL | [2014] FamCAFC 246 |
| FAMILY LAW – APPEAL – RECOVERY ORDER – Where the trial judge made interim orders requiring the return of the child from the mother in Queensland to the father in the Northern Territory after the mother unilaterally relocated with the child – Where the mother asserted errors by the trial judge in the assessment of family violence, the child’s relationship with the mother, cultural issues and failing to order a family report – Where the primary issue was the safety of the child – Where the trial judge considered all matters – No merit in any of the grounds of appeal – Where the next hearing date was proximate – Where there was no utility in the orders that could be made even if the grounds had merit – Appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Goode & Goode (2006) FLC 93-286 |
| APPELLANT: | Ms Crouper |
| RESPONDENT: | Mr Mitchell |
| INDEPENDENT CHILDREN’S LAWYER: | Northern Territory Legal Aid Commission |
| FILE NUMBER: | DNC | 566 | of | 2012 |
| APPEAL NUMBER: | NA | 48 | of | 2014 |
| DATE DELIVERED: | 2 December 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Strickland & Murphy JJ |
| HEARING DATE: | 2 December 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 August 2014 |
| LOWER COURT MNC: | [2014] FCCA 2109 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Neaves |
| SOLICITOR FOR THE APPELLANT: | Aboriginal and Torres Strait Islander Legal Service (Qld) |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Ms Holtham |
| SOLICITOR FOR THE RESPONDENT: | Story & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Thiele |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Northern Territory Legal Aid Commission |
Orders
The appeal against the orders of Judge Harland made on 26 August 2014 be dismissed.
The application in an appeal filed on 3 November 2014 and the application in an appeal filed on 21 November 2014 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crouper & Mitchell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 48 of 2014
File Number: DNC 566 of 2012
| Ms Crouper |
Appellant
And
| Mr Mitchell |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
BRYANT CJ
INTRODUCTION
By a Notice of Appeal filed on 10 September 2014, Ms Crouper (“the mother”) appeals against orders 1 to 6 of interim orders of Judge Harland made on 26 August 2014.
The effect of the orders was first that the parties’ child be recovered pursuant to a recovery order, from the mother who had unilaterally located to Queensland, and secondly that the child live with Mr Mitchell (“the father”) pending further order. The mother was also prohibited from taking possession of the child.
The father opposes the appeal. The Independent Children’s Lawyer (“ICL”) has appeared to make some limited submissions in the matter.
The grounds of appeal in the mother’s summary of argument are slightly different from those in the Notice of Appeal, but the same complaints are equally pressed. The father takes no issue with the change of grounds and his summary of argument responds to the grounds as set out in the appellant’s summary of argument. The ICL has filed an application to adduce further evidence and the application details information that has been sought by the ICL.
Dealing first with the application to adduce further evidence by the ICL, it was initially indicated to us that the reason for that information was in relation to the re-exercise of discretion if this Court found error on the part of Judge Harland. However, upon discussion with the bench it was agreed that there was further material in there which might be relevant to the question of the utility of allowing the appeal in any event. In particular, one of the matters contained therein related to the preparation of a family report in December 2014. That information was conceded by the appellant and, accordingly, in the circumstances of the concession its admission is unnecessary, and it is my view that the application to adduce further evidence should be dismissed.
BACKGROUND
At the time of hearing before Judge Harland the father was 48 years of age and the mother was 43. The parties met in 2007 and in December 2008 or December 2009 the child was born. Both parties have a number of children from different relationships and the family dynamic is somewhat complex, which I will deal with in a moment. The parties were in a relationship until late 2013 or early 2014, with periods of separation. The extent to which they may have lived together is disputed. Both parties have made allegations of domestic violence and alcohol abuse and have involvement with the police and the Department of Children and Families in the Northern Territory. The father had always lived in Darwin; the mother had lived in Darwin since mid-2007 and continued to do so after the birth of the child. The mother left Darwin with the child without the consent of the father in February 2014 and went to live in Queensland.
The circumstances in which the orders were made by her Honour involved an application by the father for an order that the child live with him, a location order, and a recovery order. In general terms, her Honour was faced with an application of some urgency and a complex set of competing allegations by the parties as to domestic violence, neglect, abuse of alcohol, and cultural issues. The complexity of the family dynamics in the case underscores the task faced by her Honour. The father has eight children, four of whom reside with him in Darwin. Their mother lives in Katherine. The father asserts he has a good relationship with the children’s mother; the mother says he does not. The mother has three children from a previous relationship, aged 25, 18 and 15. Their father died in 1999.
The relationship between the parties was characterised by extensive involvement with the Department of Children and Families and the police. This material was before her Honour and I will return to her use of it in due course. The incident which appeared to have precipitated the mother leaving Darwin occurred on 10 February 2014. On that occasion there was an incident at the father’s home. The details of what occurred are disputed. But the mother attended at the father’s home where the child was present and a dispute apparently occurred between the mother and members of the father’s family, including the father’s 13 year old son. The father was not at home at the time of the dispute.
The mother was allegedly intoxicated and tried to remove the child from the home and also allegedly assaulted the father’s 13 year old son. The mother denies this and also says that threats had been made against her life, including by the father, which caused her to leave Darwin. When the police found the mother after the incident her blood alcohol reading was 0.115. The mother was charged with aggravated assault and there is a warrant currently extant for her arrest. In March 2014 the mother was located and the child was removed pursuant to the recovery order.
Her Honour delivered ex tempore reasons for judgment on 26 August 2014. They are relatively short, running for 20 paragraphs. Her Honour commenced her reasons for judgment by observing that the case was difficult, that it was finely balanced, and that there were extensive allegations on both sides. She discussed some of the evidence in relation to the allegations of violence and alcohol abuse. She noted that there was material from the Department of Children and Families that included alleged instances of violence, sexual abuse, emotional harm and neglect in the father’s home, but the material did not refer to whether any allegations had been substantiated. She noted that there were issues of Aboriginal culture which would need to be determined at a final hearing, but found that they were not significant on an interim basis. She said, in my view importantly “What is most significant is really issues of child safety and this is where the police records have some significance.” (at [11])
Her Honour then discussed the incident that occurred on 10 February. She noted the evidence from the father and his son. She noted the mother’s denial of their version of events. Her Honour then relied on evidence from the police records relating to the mother’s aggressive behaviour and intoxication on 10 February and said it was concerning the mother wanted to take the child in the car while intoxicated. Her Honour observed that there was a warrant for the mother’s arrest as a result of the 10 February incident.
Her Honour said that because the father had four of his other children in his care it suggested that there was not such concern about the father, that the other children had been removed from his care. She concluded that in the circumstances it was appropriate to make the recovery order and provide for the child to live with the father. The Court was informed without demur that the child had indeed been placed with the father and was living with him and that the mother continued to live in Queensland.
GROUNDS OF APPEAL
The grounds of appeal, as set out in the appellant’s summary of argument, really fell into six areas: first, that Judge Harland misdirected herself on the level of family violence; secondly, that she did not properly consider the child had always lived with the mother; thirdly, that she failed to consider the legislative pathway in Goode & Goode (2006) FLC 93-286; fourthly, that she failed to consider the facts regarding the father’s appropriateness to care for the child; fifthly, that she failed to consider ordering a family report under section 62G of the Family Law Act 1975 (Cth) (“the Act”) before determining the matter; and sixthly, that she failed to properly consider section 61F of the Act.
In addition, the Court raised with counsel the issue of the utility of the appeal in light of what we were informed, again without demur, was the likelihood of the case being heard, at least on a further interim basis, in February 2015 in Darwin. Various factors suggest that even if we were to allow the appeal and remit the matter for rehearing, the strong probability is that no earlier interim hearing would be possible, particularly having regard to the fact that the preparation of the family report, which is supported by the mother, is currently underway and will not be available until the end of December.
DISCUSSION
Absent manifest error of law or breaches of rules of natural justice, an appellant will always face considerable difficulties challenging an interlocutory decision. This is all the more so when a hearing date is proximate and available. Many decisions of the Court over the years have made this point. The challenge is always to make orders in the best interests of the child on limited information and when allegations are disputed this can be particularly difficult. Indeed, it was clear that that was what her Honour was faced with in this case. In my view, in light of that fact that a hearing, at least on interim issues with the addition of the family report, can be held in February 2015, there is no utility in the appeal. That is because if the appeal was successful and we ordered a rehearing, it could not reasonably be sooner than February.
In the context of seeking submissions about the utility of the appeal, we raised with counsel for the mother the question of how this Court would be able to return the child to the mother in Queensland, which appears to have been an assumption that she made about a potential outcome if the appeal were successful. The assumption which is inherent in that submission is that this Court would find the decision so demonstrably wrong that we would allow the appeal and re-exercise discretion and that we would necessarily come to a different decision from her Honour, namely that the child should be returned to the mother in Queensland forthwith. Counsel for the mother conceded there was no application to adduce further evidence by the mother. Counsel for the mother also conceded that there was nothing before us other than the same contested evidence and independent records, such as they were, from the police and the Department of Human Services upon which a decision could be made by this Court.
I reject the assumption that we must inevitably concede on a re-exercise that the result contended for by the mother is inevitable. For that reason I reject any argument that this Court could or should re-exercise the discretion. In my view, if appellate error is found, the matter must be remitted for rehearing. That raises, as I have already said, the question of whether there would be any utility in allowing the appeal in those circumstances, even if we were to find error and in my view there would not.
However, turning to the grounds as set out in the appellant’s summary of argument, 4(a), (b) and (d) all turn on an assertion by the mother that the facts asserted by her ought to be preferred. Clearly, those facts were the subject of evidence that her Honour could not resolve and they were hotly disputed. Demonstrably, in my view, there was no error by her Honour in failing to accept the mother’s version of events, both for the reason that they were contested by the father and also that they were not supported by the objective evidence that her Honour had before her.
Ground 4(f) deals with the question of cultural issues, and her Honour’s failure to take them into account in relation to the interim proceedings, and in particular, her Honour’s comment that they were not significant on an interim basis. In my view her Honour in no way sought to diminish the importance of cultural issues, which are a relevant and important fact in the Act, in particular in section 60CC. However, in my view her Honour appropriately recognised their importance by observing that their very importance required full and proper consideration, which could only occur at a final hearing.
At the interim hearing facing her Honour, the overwhelming issue was one of safety of the child in the context of hotly contested allegations on both sides of violence, alcohol abuse and neglect. In addition, the issue of culture was one of the matters that her Honour had to consider. As counsel conceded, it is not in any sense an overriding matter or a matter which would trump anything else. Having regard to the substantial allegations on both sides, the need to consider the best interests of the child and particularly the safety factors, as indeed the Act requires, her Honour, in my view, was not in error in the way in which she dealt with cultural issues.
Ground 4(c) criticises her Honour for failing to follow the legislative pathway. Her Honour did not make an order for equal shared parental responsibility, however subsection 61DA(1) of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Subsection 61DA(3) provides, however, that when making an interim order the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.
In addition, subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in the abuse of another child or family violence. All of these factors were well and truly, starkly before her Honour in this case. In my view it can be fairly said that her Honour had implicitly, by the matters that she raised in the reasons for judgment, considered the presumption which is rendered inapplicable in subsection 61DA(2) in relation to matters where issues of violence are raised, or inappropriate in the context of subsection 61DA(3), where she was dealing with an interim hearing.
I thus do not consider her Honour fell into error in not making an order for equal shared parental responsibility in this matter. Having not made such an order, the parenting orders that her Honour could then make were at large and her Honour was not required to have regard, for example, to section 65DAA (see Goode & Goode). It is not necessary for a trial judge at an urgent interim hearing to go through each and every matter in section 60CC in coming to a determination about what is in the best interests of the child. What is required is a consideration, in a particular case, of the relevant matters which the case presents.
In this case the overwhelming issue was safety, pursuant to paragraph 60CC(2)(b), and her Honour gave it central importance. The reasons, read as a whole, indicated that her Honour gave the relevant matters in this case appropriate consideration. In particular, she considered the relationship of the child to both parents; she considered the question of culture, which I have already referred to; and she considered the question of a meaningful relationship between the child and both parents and other family members in the context of safety and the evidence.
Her Honour considered the responsibilities of parenthood relating to each of the parents (at [8]) and the question of domestic violence orders and their breaches, and allegations and counter-allegations about them, were taken up by her Honour. She also followed Goode & Goode in identifying the contested allegations and relying upon such objective evidence as was available to her in coming to a decision. I also observe that her Honour noted that this was a finely balanced case.
Finally, ground 4(e) of the appellant’s summary of argument asserts that her Honour erred in failing to adjourn the matter until a family report had been prepared. In my view, this ground cannot succeed.
Her Honour was faced with a reasonably urgent application, which she had to determine on an interim basis which involved serious allegations in relation to safety issues for the child. The mother’s summary of argument asserts that her Honour should, in such a finely balanced case, have adjourned for a family report to “assist in discerning what may be fact from fiction”. In my view, this submission misunderstands the scope of a family report. Contested issues of fact are for the judicial officer to determine, not the family report writer, whose task is a very different one (see Hall & Hall (1979) FLC 90-713).
Her Honour subsequently did order a family report, which ought to be available on the next occasion before she deals with the matter again. The extent to which the family report will be of assistance to her Honour will depend upon its content but she will still be faced, until a final hearing, with the very much contested allegations of violence, abuse, neglect, and alcohol abuse by both parties. The existence of a family report, in any event, does not obviate the requirement for a judge to make an order which he or she considers to be in the best interests of the child when it comes before them.
That task was one which her Honour faced and undertook. Accordingly, I find no merit in the grounds of appeal and I would dismiss the appeal for the reasons I have expressed.
STRICKLAND J
I agree with the reasons delivered by the Chief Justice and with the orders that her Honour proposes, and I have nothing further to add.
MURPHY J
I join in the orders proposed by her Honour the Chief Justice. I agree with her Honour’s reasons. I have nothing to add.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 2 December 2014.
Legal Associate:
Date: 19 January 2015
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