Dodds and Murdoch

[2016] FCCA 2456

FEDERAL CIRCUIT COURT OF AUSTRALIA

DODDS & MURDOCH [2016] FCCA 2456

Catchwords:
FAMILY LAW – Recovery application – three children aged 12, 8 and 4 – father unilaterally relocated children’s residence from Sydney metropolitan area to (omitted) – children not spent any time with mother since father’s unilateral relocation of their residence – best interests – children to be returned to the mother.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 67Q, 67T, 67U, 67V

Cases cited:

Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant: MS DODDS

Respondent: MR MURDOCH

File Number: PAC 4271 of 2016

Judgment of: Judge Obradovic

Hearing date: 21 September 2016

Date of Last Submission: 21 September 2016

Delivered at: Parramatta

Delivered on: 22 September 2016

REPRESENTATION

Appearing for the Applicant: Mr Siu

Solicitors for the Applicant: Aboriginal Legal Service

Appearing for the Respondent: Mr Graham

Solicitors for the Respondent: A W Simpson & Co

PENDING FURTHER ORDER THE COURT ORDERS THAT

1. Reasons for Judgment are reserved to be delivered at 4pm on 22 September 2016. The parties and their legal representatives are excused from attendance on 22 September 2016.

2. Grant leave to the mother to commence proceedings dispensing with the requirement for a section 60I Certificate.

3. Pursuant to section 67Q of the Family Law Act1975 the father is to return the children X born (omitted) 2008, Y born (omitted) 2004 and Z born (omitted) 2012 at 12 noon on Saturday 24 September 2016 to the mother; with the children to be delivered by the father and collected by the mother at the (omitted) at (omitted), (omitted).

4. The parties shall attend mediation with an accredited Family Dispute Resolution Practitioner within the next 30 days:

   (a)as agreed between the parties or failing agreement within 21 days of this Order as nominated by the Law Society of New South Wales Solicitors Settlement Service;

   (b)absent agreement within 14 days of today’s date as nominated, on the application of either party, by the President or other office bearer of one of the following:

   (i)LEADR;

   (ii)Australian Mediation Association;

   (iii)Australian Institute of Arbitrators and Mediators;

   (iv)Law Society of NSW Mediation Unit;

5. The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the mediator not less than 7 days prior to the Mediation.

6. Forthwith upon a Family Dispute Resolution Practitioner being agreed or appointed then each party shall:

   (a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;

   (b)Pay one half of all fees charged by the practitioner;

   (c)Attend at such times, dates and places necessary to complete mediation.

7. List the matter for Interim Hearing without priority at 10am on 1 December 2016 noting the matter is listed as a reserve matter.

8. Grant the parties liberty to seek to have the matter restored to the list on seven days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4271 of 2016

MS DODDS

Applicant

And

MR MURDOCH

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 9 September 2016 the mother sought an urgent recovery order with respect to the children Y (“Y”) born on (omitted) 2014, X born on (omitted) 2008 and Z (“Z”) born on (omitted) 2012. 

2. The Application was heard at short notice, and after the father had filed a Response, Affidavit and Notice of Risk.

3. Both parties were legally represented.

4. The mother relied upon the following documents:

   a)Initiating Application filed 9 September 2016;

   b)Affidavit of Ms Dodds filed 9 September 2016;and

   c)Notice of Risk filed 9 September 2016.

5. The father relied upon the following documents:

   a)Response filed 20 September 2016;

   b)Affidavit of Mr Murdoch filed 20 September 2016; and

   c)Notice of Risk filed 20 September 2016.

The Law

1. In proceedings for Recovery Order, the Court may, subject to section 67V of the Family Law Act1975 make such Recovery Order as it thinks proper: s67U. Pursuant to section 67V in deciding whether to make a Recovery Order in relation to a child a Court must have regard to the best interest of the child as the paramount consideration. Standing to apply for a Recovery Order is set out in s.67T and I am satisfied that the mother is a person concerned with the care, welfare or development of the children the subject of the application. A recovery order is, inter alia, defined as an order requiring the return of a child to a parent of the child.

2. Sections 60CB to 60CG deals with how a Court determines the child’s best interest.

3. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. In applying the considerations set out in subsection 60CC(2), the Court is to give greater weight to the consideration set out in paragraph (b).

4. In addition, in considering what order to make, the Court must to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence: s.60CG (1)(b)[1]. The Court may include[2] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [1] See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [2] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

5. The Act does not mandate the discussion of considerations under s.60CC in any particular order and it is well recognised that additional considerations may outweigh primary considerations.[3]

   [3] see for example Slater & Light [2011] FamCAFC 1at [45]

Best Interests Considerations

1. By way of brief background the parties commenced living together from about 2003 and separated in about mid-2016[4]. The children and the parties prior to separation lived in (omitted), a suburb of Sydney.

   [4] The mother says final separation occurred in July 2016, the father gives a different date being May 2016

2. After the parties separated, the father and the children moved from the family home in (omitted) to live with the father’s aunt in (omitted), another suburb of Sydney. This was for a period of a few weeks only.

3. The mother says she did not want the children to live with the father, certainly did not want their residence to be in (omitted) and offered the father to live in the family home in (omitted). The father says that the mother forced him and the children out of the family home. I cannot make any findings about this disputed fact at this stage of the proceedings.

4. On 13 August 2016, the father relocated the children’s residence from the Sydney metropolitan area to (omitted), a driving distance of approximately six hours. The mother did not agree to such a relocation.

5. The children have not spent any time with their mother since the father relocated their residence to (omitted) more than one month ago. The father has not provided any satisfactory explanation as to why the children have not seen their mother in over one month. 

6. The mother is in full time employment as a (occupation omitted) working for the (employer omitted) in (omitted), having returned to full-time employment in about mid to late 2015. The father is unemployed and on Centrelink benefits, although the father runs a small business.

7. The father says that he was the children’s primary carer throughout the parties’ relationship. The mother says that she has a strong and loving relationship with the children. There is no independent evidence of the children’s attachment to either of their parents.

8. The mother resides in a three-bedroom home with a large backyard and a trampoline in (omitted). This is the property where the children and parents lived prior to separation.

9. The father says the children “have a great place to live in (omitted) with a big back yard and a trampoline.”

10. Prior to August 2016, Y and X attended (omitted) School in (omitted). Z is not yet of school age but he was attending playgroup in the (omitted) area one day per week. The children were participating in extra-curricular activities.

11. Since moving to (omitted) the father has enrolled the two older children into (omitted) School. Z is attending (omitted) Aboriginal Preschool three days per week and he is in (omitted) Aboriginal Playgroup one day a week. The children have been enrolled in extra-curricular activities in the (omitted) area.

12. Both of the parents are Aboriginal and both of the parents give evidence about their connections to their respective families and to the Aboriginal culture.

13. The father alleges that the mother has a number of mental health issues. It was not made clear during submissions what the relevance of such allegations was and there was certainly no evidence to suggest that the mother’s capacity to parent the children was in any way impacted upon by the alleged mental health issues.

14. What the father did do was take the Court to certain text messages and handwritten notes annexed to the father’s Affidavit in support of what the Court understood was a submission that the mother did not want the children living with her. In light of the mother’s Initiating Application the Court does not accept the submission that the mother does not want the children living with her. The text messages and the handwritten notes at best point to some fragility of the mother and show some insight by the mother as to the effect of her fragility on the children.

15. Y has anxiety issues. The mother gives evidence about the fact that the child picks at her own body when she is feeling anxious. Y has been seeing a psychologist Dr C on a monthly basis for the past two years, she had also been seeing a Counsellor at her school. The father in his submissions to the Court today said that Y has been self-harming. The father has arranged counselling through the children’s new schools for both Y and X. He does not appear to have arranged for any other therapy for Y at present.

16. The father says that X used to cry at school when she was living in Sydney and that the reason that was reported for her crying was because “mum is never home”. It is clear that while the children were living in Sydney on the father’s evidence X was struggling with not spending enough time with her mother and that she wanted to spend more time with her mother than she had been.

17. In evidence are text messages which the father sent to the mother after the relocation where he refers to the mother in most derogatory terms, those being “putrid cunt” and “cunt face” and referring to the child Z as “my son”. The father says in the text messages sent to the mother “Go and die… Spend your last 6 months in court… and fuck your birthday.” Such text messages were sent in the context of the mother having been told by her medical practitioner about two months ago that the nodules found in her thyroid were consistent with cancer. The mother has had a biopsy and is due to see a specialist in relation to whether she needs to have any surgery.

18. I am not satisfied that since the children’s move to (omitted) the father has been bona fide in his attempts to maintain a relationship between the children and the mother, despite the father and the mother remaining in contact via telephone and social media and the mother speaking to the children on the telephone since their move to (omitted).

19. I find that the father’s actions in moving the children’s residence in the circumstances of this case shows little insight into the impact such actions might have had on the children. I particularly take into consideration that Y already appears to be suffering from mental health issues and continues to self-harm and that X had been expressing that “mum is never home”.

20. Z, who only turned four in April of this year, has not seen his mother over one month. The father does not give any evidence saying to the Court that he has considered how this might be affecting Z and what plans he has put in place to ensure that such a relatively young child is provided with the opportunity of having a meaningful relationship with his mother.

21. The father says:

    “I want the Children to remain in (omitted). They are settled in school, in sport, and in their culture. To move them back to Sydney now would simply put us all back where we were before; me with having little support for the kids and trying to make ends meet, the Mother dealing with her mental health issues which have prevented her from being stable with the kids in the past and her boyfriend threatening violence against me. It is just not a good environment for them.”

22. It is disingenuous for the father to say that he wants the children to remain in (omitted) because they are settled in school, in sport and in their culture in circumstances where he relocated their residence after the family had been living in (omitted) for the majority of the children’s lives and in circumstances where the children had been settled in school, in sport and in their culture.

23. The father says that he has since moving to (omitted) invited the mother to attend mediation so that they could sort out future parenting arrangements. The father also said in submission that before the move to (omitted) he had made attempts at Family Dispute Resolution but the parties did not ultimately participate. The father knew that the mother did not consent to the children’s residence being relocated to (omitted). The change of residence was a pre-emptive move by him. I do not accept the submission that ‘he had no choice’.

24. The father says:

    “I have wanted to resolve the issues between the Mother and me through mediation, as I know this (sic) what you are supposed to do before going to Court. It is not fair the Mother is skipping this step; it is like she does not care what I have to say…The mother and I have issues we need to discuss. I want us to have a conference to discuss everything. The Court should throw this matter out. There is no reason to drag all this out into a big Court case when we might come to an agreement through mediation, and mediation has already been set up.”

25. The recovery application was heard on an urgent basis and the Court accepts that there was only limited evidence placed before the Court in respect of the parents’ differing positions. The applications for residence that each of the parents brings are likely to be heard on an interim basis in a relatively short period.

26. The orders made today for the children to be returned to the mother do not of themselves determine the issue of residence or time with the parent with whom the children are not living.

27. The orders as made provide for the mediation process which the father contends for.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these reasons.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 22 September 2016