Dalby & Glaister

[2021] FCCA 1301

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dalby & Glaister [2021] FCCA 1301

File numbers:	MLC 4959 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	25 May 2021
Catchwords:	FAMILY LAW – Interim parenting – urgent abridgment – mother – where children are spending time interstate with the father – where father has over held children – where father seeks for children to live with him – where mother seeks return of children – orders made for children to return to mother from hence they came – family report ordered – trial date allocated.
Legislation:	Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 65DAC
Cases cited:	Goode & Goode [2006] FLC ¶93-286
Number of paragraphs:	21
Date of hearing:	25 May 2021
Place:	Melbourne
Solicitor for the Applicant:	Ms MacGregor of MacGregor Barristers and Solicitors
The Respondent:	Appeared in Person

ORDERS

MLC 4959 of 2021

BETWEEN:

MS DALBY

Applicant

AND:

MR GLAISTER

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	25 MAY 2021

THE COURT ORDERS THAT:

1.The children, X born in 2014 and Y born in 2017 (“the children”) live with the Mother, Ms Dalby ("the Mother").

2.Pursuant to section 68L(2) of the Family Law Act 1975 the children X born in 2014 and Y born in 2017 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

3.The children communicate with the Father, Mr Glaister ("the Father") via telephone between 6:30pm - 7:00pm each Sunday, Tuesday and Thursday with the Father to initiate the telephone call.

4.Reserve liberty to apply.

5.Both parents be restrained from administering physical discipline to the children or any of them.

6.Upon Mother flying to Queensland (to collect the children and return to Melbourne with them), then:

(a)The Father have the children available for collection at the airport at the place advised by the Mother;

(b)The Mother to provide as much notice as practical to the Father of the time and place of collection;

(c)The collection of the children to occur no later than 6pm Sunday 30 May 2021; and

7.Reserve to final hearing the issue of refunding the Mother's expense of flying to Queensland to collect the children per these Orders.

8.Both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children X born in 2014 and Y born in 2017 from the Commonwealth of Australia.  This order ceases to have effect 2 years after the date on which it is made.

9.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.

10.The Court requests that the Australian Federal Police place the names of the children on the Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.  This order ceases to have effect 2 years after the date on which it is made.

11.Both parties do all acts and things to cause and ensure the children's passports are held in the office of Macgregor Barristers and Solicitors.

12.Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children X born in 2014 and Y born in 2017  attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by 20 December 2021 AND THAT:

(a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the children.

(b)The parties comply with all reasonable directions of the Family Consultant.

(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.

13.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.

14.The proceedings be adjourned to 27 April 2022 at 10:00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit Court of Australia at Melbourne.

15.The matter may be listed for a compliance mention by telephone approximately 2 weeks prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.

16.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

17.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 56 days prior to the Final Hearing.

18.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 42 days prior to the Final Hearing.

19.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 28 days prior to the Final Hearing.

20.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

21.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.

22.For in person final hearings, parties are directed to have multiple copies of the documents they seek to tender and have multiple copies of documents available to witnesses.

23.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to: associate.judgeo'[email protected].

AND THE COURT NOTES THAT:

A.The Mother sought a Recovery Order on this day, but the Father assured the Court that it was not necessary.

B.Although 12 hours' notice of the Mother's arrival in Queensland was discussed at hearing, this is no longer practical given the changing COVID-19 circumstances in Melbourne.

C.By the time this Order was taken out the Mother had advised she has arranged to fly to Queensland on the afternoon of 26 May 2021.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

INTRODUCTION

1. These are the settled reasons of an oral ex tempore judgment in a duty list.  This matter comes before me having been issued in urgent circumstances where the applicant mother Ms Dalby (‘the Mother’) issued proceedings with the assistance of a lawyer on 4 May 2021.  The respondent father Mr Glaister (‘The Father’) tells me that he had sought to issue proceedings roughly 14 days earlier and was unable to by the complexities of the filing system. 

2. I have determined that until further order and subject to any further order until final hearing of this matter, the children X, aged 7 and Y aged 4 (‘the children’) should be returned to Melbourne to live with the Mother.  In the circumstances that I cannot determine the competing significant allegations relating to the children's welfare on this interim hearing.  I am bound by, and must follow, the guidelines set out in the decision of Goode & Goode [2006] FLC ¶93-286 (‘Goode & Goode’). 

3. The matters that the Father raises do relate to the welfare of the children and they will be matters that I have every confidence will be looked at carefully in the preparation of family report that I am going to order and that will be looked at by me on a final hearing.  I do not have the facility of a family report available before interviews that will take place in December 2021.  So a family report will likely be released in January/February 2022.  I will make orders for the filing of trial material but I will also permit the parties to rely upon the material that they have already filed if they wish to, provided notice is given. 

   ISSUE FOR DETERMINATION

4. The question I must answer today is: Do the children remain living in Queensland with their Father, or do they return to live in Melbourne with their Mother, for the time being and until the final hearing? 

5. The Father's case, I might add, is helpfully set out by responding to the Mother's allegations in articulate affidavits filed on 24 May 2021.  Firstly, a general affidavit and then a very specific affidavit that responds to particular paragraphs of the Mother's affidavit.  I was assisted by the articulate nature in which he has addressed the issues that have been raised.  The reasons why I am determining that I will order that the children return to Melbourne to live are as follows. 

   BACKGROUND

6. The parties commenced cohabitation in 2009.  They married in 2009 and their final separation was in January 2018.  They were divorced in April of 2020.  The circumstances or the places of where they have lived are largely not disputed between them.  It is common ground that the children have always lived with the Mother.  The Mother alleges that the Father lived in Sydney and had very little time with the children for a period from about February 2019 until December of 2020.  The Father's response to that is to not deny the fact of that but essentially to assert that his contact and time with children was cut off by the Mother. 

7. It is clear that when the Father returned to Melbourne that he has spent time with the children.  He has usually spent time on the weekend and he asserts for up to three nights or three days on a weekend, though that has changed from time to time given his circumstances.  Other relevant parts of the chronology are that in about December 2020 the Father with his wife and child relocated to Queensland.  Following that, by agreement between the parties, the children spent school holiday time in Queensland and then returned to their Mother's home in Melbourne. 

   THE DISPUTE

8. In about 13 April 2021 the Mother accompanied the children to Queensland and returned and it was agreed, she says, that the children would return on or about 21 April 2021.  Prior to the due date for their returning the Father determined that they shouldn't return and should remain with him. 

9. It appears that he had agreed that the children would return but changed his mind.  The reasons he said it was necessary to make that significant intervention in the children's lives is what he describes as, “The cycle of domestic violence and coercive behaviour,” that is alive in the Mother's household and that takes place by coercive and manipulative behaviour as well as excessive physical disciple.  That is the first matter. 

10. The next matter is the dynamic of particularly X going to school in circumstances where he withdraws from the world and does not eat his lunch.  When he comes home he is hungry and it takes longer to study, and he is under relentless pressure from his Mother to study harder to achieve better results.  The third matter is what he asserts is medical neglect.  That is that Y had not been immunised.  Also that X had a problem with his ears which was neglected by his Mother and that these matters then stress the Mother and that then contributes to the cycle of violence of the physical discipline and coercive behaviours by her. 

11. The fourth matter is that the relentless pressure on X to study hard to do better to improve his educational circumstances that ends up in Y being neglected, demanding attention, hence adding to the stress upon the Mother and that this is a never ending cycle and will not stop.  The fifth matter is a separate matter and it is related to the first and the second.  That is on the Father's case X is failing to meet the necessary standards of education in particular in regard to English comprehension, and as I understand it, reading, writing and speaking English. 

12. It is common ground between the parties that X was repeating grade one in Melbourne and is repeating grade one in Brisbane where the Father has enrolled him in school but it appears that there has been significant discord between the parents.  The Father has read to me text messages which occurred on 17 March and 7 April, whereby, by those text messages the Mother has been critical of the manner in which the Father has communicated and spoken to her and has threatened to cut him off from time with the children.  This occurred effectively again on or about 7 April where the Mother was effectively saying I will never make such a trip again.  Notwithstanding those communications, it is common ground that in fact the Mother did take the children to Brisbane for the purpose of spending time with the Father soon after those messages on 13 April.

13. It is common ground that the Father communicated to the Mother that he would not be returning them before the time that they were due to return. The Notice of Child Abuse, Family Violence or Risk triggered the response from the Department of Families, Fairness and Housing (‘DFFH’) pursuant to section 67Z of the Family Law Act 1975 (Cth) (‘the Act’). I recite the last paragraph of that response:

    The current information is largely indicative of the custody conflict occurring between Mr Glaister and Ms Dalby, rather than any identifiable significant risk of harm posed to the children by Mr Glaister. The concerns regarding his past alcohol misuse lack detail, time frames or incidents specific to him placing the children at risk as a result. Mr Glaister's decision to withhold the children from Ms Dalby, while not ideal and likely to be having an emotional impact upon the children, is a matter to be addressed via the family law system, not Child Protection. It is assessed that the children are not at a level of risk in either of their parents care to warrant intervention.

14. Because the Father is a litigant in person, he had not had the benefit of that DFFH report dated 14 May 2021, which I have marked “C1 25 May 2021.”  I had my associate read it to him.  The Father makes the point that that is a very brief report done in an emergency situation and not an in-depth analysis.

15. Paragraph [72]-[73] and [81]-[82] of Goode & Goode states:

    [72]In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

    [73]That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

    …

    [81]In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

    [82]In an interim case that would involve the following:

    (a)       identifying the competing proposals of the parties;

    (b)       identifying the issues in dispute in the interim hearing;

    (c)       identifying any agreed or uncontested relevant facts;

    (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

    (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

    (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

    (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

    (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

    (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. Balancing all of the matters in section 60CA through to the end of section 60CC (3) of the Act, I proceed on the basis that the children's best interests are the paramount of consideration. I also proceed on the basis that the children should have a meaningful relationship with both of their parents, provided it is safe to do so, and if there is a conflict between those two provisions, the protective matter is to be given more weight.

2. I take into account the matters under section 60CC of the Act to the extent that they have been agitated before me today and are relevant. The most significant matter that I take into account is that the children have been living with the Mother as their primary caregiver for all of their life until that was interrupted: and interrupted by the unilateral decision of the Father. If the matters that the Father refers to are correct and borne out, then there would be some justification for that unilateral acting.

3. As a general rule, it is not in the children's interests for either parent to make unilateral determinations about where the children are to live and simply then to tell the other parent later on. 

4. I am also obliged to have regard to section 65DAC of the Act and the principles that relate to it. I note that in this case the parents share parental responsibility, and as a matter of law that requires the parents who share parental responsibility to consult each other and make a genuine effort to come to a joint decision about significant issues effecting the children. Section 65DAC of the Act states:

   Effect of parenting order that provides for shared parental responsibility

   (1)      This section applies if, under a parenting order:

   (a)       2 or more persons are to share parental responsibility for a child; and

   (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   (2)      The order is taken to require the decision to be made jointly by those persons.

   Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

   (3)      The order is taken to require each of those persons:

   (a)to consult the other person in relation to the decision to be made about that issue; and

   (b)       to make a genuine effort to come to a joint decision about that issue.

   (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

5. That would include significant issues such as where the children are to live, whether it is in Brisbane or in Melbourne, and significant issues about what school the children are to go to.  The Father complains about the Mother being coercive and essentially explains his lesser involvement in the children's life as the product of her personality and her coercive and demanding nature.  However, on the information that I have available to me, I cannot determine that the claims the father makes about the Mother's household are correct in the circumstances where she denies them. 

6. Further DFFH has determined, as I have set out above, that the children are not at risk of harm in either parent's household. It appears to me that these children's circumstances call for the appointment of an Independent Children's Lawyer, and I intend to fix the matter for final hearing and order of the family report pursuant to section 62G of the Act.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       10 June 2021