Deforest and Deforest

[2018] FCCA 1330

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEFOREST & DEFOREST [2018] FCCA 1330

Catchwords:
FAMILY LAW – Parenting – interim orders – recovery order – two children – situational family violence – father retained children – father changed children’s school – children spending no time with mother – children’s need for stability – best interests of children.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

Goode & Goode [2006] FamCA 1346

SS & AH [2010] FamCAFC 13

Applicant: MS DEFOREST

Respondent: MR DEFOREST

File Number: NCC 1225 of 2018

Judgment of: Judge Middleton

Hearing date: 7 May 2018

Date of Last Submission: 7 May 2018

Delivered at: Newcastle

Delivered on: 7 May 2018

REPRESENTATION

Solicitors for the Applicant: Kilpatrick Hatton

Solicitors for the Respondent: Harris Kelly & Associates Solicitors

ORDERS

1. The Orders are made in accordance with the Order proposed by the Mother (with amendments) marked with the letter “A” and attached herein.

2. The Solicitor for the Applicant is to file a clean certified typescript of the Orders proposed by the Mother (with amendments) to be placed on the court file within forty eight (48) hours of today by email.

3. On 26 June 2018 at a time to be advised, the parties and the children [X] born 2006 and [Y] born 2011 (“the children”) are to attend a child inclusive conference with a family consultant pursuant to section 11F(1) of the Family Law Act 1975.

4. The parties are advised that if a person who is ordered to attend an appointment with a family consultant under section 11F fails to comply with:

   (a)The Order made by the Court; or

   (b)Any instruction the consultant gives to the person; the consultant must report the failure to the Court.

5. On receiving the report, the Court may make any further Orders it considers appropriate.

6. The Court may make Orders under section 11F(2) :

   (a)On its own initiative; or

   (b)On the application of:

   (i)A party to the proceedings; or

   (ii)A lawyer independently representing a child’s interests under an order made under section 68L.

7. The matter is adjourned to 9.30am on 20 August 2018 at Newcastle for directions hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1225 of 2018

MS DEFOREST

Applicant

And

MR DEFOREST

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

1. This matter comes before me by way of an Initiating Application filed on 23 April 2018. 

2. The Respondent was granted leave to file his material today and he did so file his Response, Affidavit and Notice of Risk.  It is those documents he relies upon.

3. The Applicant relies upon her Initiating Application, Affidavit and Notice of Risk. 

4. It is an application for a recovery order. 

5. Neither of the parties’ affidavits complied with the practice direction, thus I asked the parties what it was that they relied upon. 

6. The solicitor on behalf of the father indicated that the father would rely upon pages 4, 5, 6, 7, 8, 9, 10, 11, 16 and 17 of his Affidavit, and the mother through her solicitor indicated that she would rely upon pages 4 through 10 regarding the Affidavit filed 23 April 2018, and pages 2 through 4 regarding the Affidavit filed on 4 May 2011.

7. This is an interim hearing.  Nothing is agreed, as is usually the case at interim hearings. 

8. Both parties allege alcohol abuse.  Neither brings any evidence. 

9. Both parties alleged significant mental health issues.  It is a fact that the father has been discharged from the service in 2015 and that he has had two admissions to hospital for his mental health issues since.  The last such admission was December 2017.  The mother admits to suffering anxiety and annexes a document from her general practitioner that has boxes ticked for anxiety and depression.

10. There is an Apprehended Domestic Violence order in place protecting the father.  The mother has pleaded guilty to slapping the father.  She alleges there was more to it.  The mother says the father backed her up against a fridge and in defence she slapped him.  Nevertheless, she pleaded guilty. 

11. Since the father has taken the children into his care in April 2018 the children have not seen their mother. 

12. The father has enrolled the children into another school.  Previously the children attended School A. 

13. The mother alleges that the father has been stalking her through the use of recording devices. 

14. There is so much in dispute that it would be unsafe to make any findings.

15. What is not in dispute is that the children previously lived at Town B and they went to School A.  It is also not in dispute that the children have been through a good deal of instability since December 2017. 

16. I am of the view that I can take judicial notice of the fact that children require stability in order to thrive.

17. Removing children from a long-standing community and school environment and withholding children from one of their parents creates significant instability. 

The Law

1. Section 67V of the Family Law Act (“the Act”) provides that in deciding whether to make a recovery order the best interests of the children is my paramount consideration.

2. This matter rests on providing stability for these children and in providing the children the opportunity to spend time with both of their parents. 

3. I must follow the legislative pathway as set out in Goode & Goode[1]:

   ‘The primary considerations are the benefit of the children of having a meaningful relationship with both of the child’s parents.’

   [1] [2006] FamCA 1346

4. The children did have a meaningful relationship with both of their parents prior to the father deciding to keep the children in his care. Further in Goode & Goode[2]:

   ‘…The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.’

   [2] Ibid.

5. Both parents allege that the other has perpetrated family violence against them and in the presence of the children.  The mother has admitted to slapping the father at a time when the parties were separating. 

6. In those circumstances, on that instance I can be comfortable in finding that it was situational couple violence. In circumstances where the parties no longer live together, noting that they were separated under the one roof until such time as that incident, I am satisfied the likelihood of the children being exposed to family violence between these parents is slim.

7. In SS & AH[3] the Full Court said:

   ‘Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.’.

   [3] [2010] FamCAFC 13 at 100.

8. I am concerned that these children have been withheld from their mother. I am concerned that they’ve been removed from their longstanding school, and I am concerned that they have been removed from their usual living environment. 

9. As to whether there is any proof of the allegations raised by the father or mother, that is a matter for another day. 

10. I must do what I consider is appropriate and in the best interests of the children in those circumstances.

Additional considerations – 60CC(3)

1. Turning to those addition considerations in section 60CC(3), there have been no views asked of the children at this stage save for what the parties themselves allege the children are saying. 

2. The order that I make today will involve the parties and the children attending upon a family consultant for the purposes of a Child Inclusive Conference. 

3. Both parties allege that they were the primary carer of the children. The father in circumstances where he says since 2015 when he was medically discharged he has been the primary carer, and the mother in circumstances where she says due to the father’s psychological issues he could not be fully available for the children.  Again, I can make no finding in relation to that.

4. I am satisfied that the order that I will make today will have a positive effect on the children, and that it will return the children to the circumstances that they were in prior to this significant instability in their lives. 

5. Ultimately, as to whether the children reside with their mother or the father is a matter for final determination, and after considering all of the relevant evidence and making determinations on the issues raised.

6. I note that the father now lives closer to the Town A area, and the mother still lives out in the Town B area. 

7. In those circumstances, I am not satisfied that there is any practical difficulty or expense such that would affect the children’s right to maintain personal relations and direct contact with both of their parents.

8. In terms of the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs, again, there is so much in dispute that it would be unsafe to make any findings in relation to that, save for, I note, that both parents were providing for the children’s needs in their capacity as a parent from time to time previously.

9. The father seeks an order that the children live with him and spend supervised time with the mother. 

10. The mother seeks an order that the children live with her and spend time with the father. 

11. In circumstances where I cannot make findings, in relation to the disputed allegations and, in circumstances where there is really no evidence to support the disputed allegations, other than what I have previously outlined, I am satisfied that the orders that the mother are seeking are orders that are in the best interests of the children.

12. In those circumstances, I make the following orders.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 23 May 2018