Eastman and Benford
[2010] FMCAfam 1491
•14 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EASTMAN & BENFORD | [2010] FMCAfam 1491 |
| FAMILY LAW – Parenting – interim hearing – child aged six months –unilateral relocation by mother and child to Queensland – allegations of family violence – whether the mother and child should return to Sydney – supervision of child’s time with father by mother’s nominee – child’s time with father to be assisted by childcare worker. |
| Family Law Act 1975, ss.11F, 60CA, 60CC, 61DA, 64B |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR EASTMAN |
| Respondent: | MS BENFORD |
| File Number: | SYC 6548 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 14 December 2010 |
| Date of Last Submission: | 14 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ede |
| Solicitors for the Applicant: | Husseini Lawyers & Public Notaries |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Muir Lawyers |
ORDERS
All extant applications be adjourned to this Court on 18 February 2011 at 10:00am for mention (“the mention hearing”).
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), [X] born [in] 2010 (“the child”) be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The costs of the Applicant be reserved.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
On or before 28 December 2010 the Respondent do all acts and things necessary to return the child to the Sydney Metropolitan Area and not to further remove the child from the Sydney Metropolitan Area without the prior written consent of the Applicant or an Order of the Court.
The Applicant provide the Respondent with the sum of $200.00 within the next seven (7) days for her to purchase an airfare(s) in order to facilitate paragraph four (4) herein with such sim to be paid by the Applicant as directed by the Respondent or her solicitor.
The chid spend time with the Applicant as agreed, or failing agreement as follows:
(a)Commencing 29 December 2010:
(i)Each Wednesday morning for one hour at a time nominated by the Applicant to occur between 8:00am and noon on that Wednesday, with the Applicant to nominate the specific time to the Respondent by way of email or via her solicitors no later than 5:00pm on the preceding Monday, and in the absence of a nomination by the Applicant from 9.00am until 10.00am;
(ii)Each Saturday for one hour at a time nominated by the Applicant to occur between 8:00am and 4:00pm on that Saturday, with the Applicant to nominate the specific time to the Respondent by way of email or via her solicitors no later than 5:00pm on the preceding Monday, and in the absence of a nomination by the Applicant from noon until 1.00pm;
(iii)Each Sunday for one hour at a time nominated by the Applicant to occur between 8:00am and 4:00pm on that Sunday, with the Applicant to nominate the specific time to the Respondent by way of email or via her solicitors no later than 5pm on the preceding Monday, and in the absence of a nomination by the Applicant from noon until 1.00pm;
(b)All such time the child spends with the Applicant in paragraph six (6)(a) herein occur at a location as agreed or, failing agreement, at [omitted];
(c)All such time the child spends with the Applicant in paragraph six (6)(a) herein to be accompanied by a childcare worker, Mothercraft nurse or such other independent supervisor as agreed (“the independent supervisor”), at the Applicant’s expense, with the Applicant to provide the details of the independent supervisor to the Respondent or her solicitor in advance and in the event that the Applicant is unable to arrange for the independent supervisor to be present then he will advise the Respondent or her solicitor at the earliest possible opportunity.
The Applicant be restrained from assaulting, molesting, harassing, threatening or abusing the Respondent and the child and from otherwise interfering with their manner of living.
The parties be restrained from removing the child from the Sydney Metropolitan Area and the Commonwealth of Australia or allowing any third party to do so.
The Respondent be restrained from harassing, intimidating, assaulting, molesting, harassing or otherwise interfering with the Applicant.
MR EASTMAN born [in] 1979 and MS BENFORD born [in] 1982 and their servants and agents are restrained from taking or sending or attempting to take or send the child [X], female, born [in] 2010 from the Commonwealth of Australia.
The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
The Court requests that until further order the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to consider the preliminary views of the Independent Children’s Lawyer, to review the spend time arrangements in paragraph six (6) and to make further directions in this matter.
(B)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 those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Eastman & Benford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6548 of 2010
| MR EASTMAN |
Applicant
And
| MS BENFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings were commenced by an initiating application filed on 18 October 2010 by MR EASTMAN (“the Father”) against MS BENFORD (“the Mother”), seeking various parenting orders in relation to the child of the relationship, [X], born [in] 2010 (“[X]”). The Father filed an amended initiating application on 16 November 2010 and an application in a case on 3 December 2010 orders (“the Father’s applications”).
An interim hearing was held with respect to interim parenting matters on 14 December 2010 (“the interim hearing”).
The Father seeks orders to the following effect:
·that [X] immediately return to the Sydney metropolitan area and not be removed from that area thereafter;
·that the parties have equal shared parental responsibility for [X];
·that [X] live with the Father three nights per week and with the Mother four nights per week; and
·that changeovers occur at the [omitted].
The Father’s applications are supported by his affidavits sworn on
15 October 2010 and filed on 18 October 2010; sworn on 15 November 2010 and filed on 16 November 2010; and most recently, that sworn and filed on 3 December 2010.
The Father was legally represented by Ms Ede, appearing as agent, at the interim hearing. Ms Ede provided a proposed minute of order at the commencement of the interim hearing.
The Mother filed her response on 1 December 2010 opposing the orders sought in the Father’s applications (“the Mother’s response”). The Mother is seeking orders to the effect that [X] live with her and that she be permitted to relocate to the State of Queensland.
The Mother’s response is supported by her affidavit sworn on
29 November 2010 and filed on 1 December 2010 (“the Mother’s affidavit”). She also relies on the affidavit of the maternal grandmother, sworn on 29 November 2010 and filed on 1 December 2010.
The Mother was legally represented by Mr Khosravi, appearing as agent, at the interim hearing.
Background
In 2007 the parties met in Lebanon while the Mother was on holiday with the maternal grandparents. The Father subsequently came to Australia and the parties were married in a civil ceremony on
8 December 2007.
The parties have differing accounts on why the marriage ended. The Mother asserts that the Father was sexually aggressive to her and that they disagreed on whether [X] should be raised Christian, the religious faith of the Mother, or Muslim, the religious faith of the Father.
The parties separated within weeks of [X]’s birth. On her evidence, the Mother moved out of the apartment she shared with the Father to other accommodation before relocating to Queensland. From the Mother’s affidavit it is not clear exactly when she relocated to Queensland which is a little unusual. The Mother states that she resides with her parents in a three-bedroom unit in Queensland. The exact location of the unit is not disclosed, however, she does indicate that [X] sleeps in her bedroom.
On 24 November 2010 the Mother obtained a “temporary protection order”, as it is described in Queensland, from the Southport Magistrates Court. This is marked as Annexure C in the Mother’s affidavit. The temporary protection order is clearly in favour of the Mother against the Father.
The mention hearing
This matter first came before the Court on 13 December 2010, that is, only yesterday (“the mention hearing”). The Father was present in Court and was represented by Mr Hausseni. The Mother was not present in Court and was represented by Mr Khosravi who appeared as agent. At the mention hearing an Order was made for the parties to attend an urgent child dispute conference (“CDC”), pursuant to s.11F of the Family Law Act 1975 (“the Act”), and leave was granted for the Mother to attend the CDC by way of telephone. Ms S, family consultant, conducted the CDC and released a memorandum to the Court and parties at the conclusion of the CDC (“the CDC Memo”).
When releasing the memorandum to the parties my Chambers became aware that Mr Khosravi had left Court. I authorised my Chambers to telephone Mr Khosravi and they were advised that he had left work for the day and was unaware that the matter would be returning before the Court after the CDC. The matter was subsequently recalled and, given the circumstances, adjourned to the interim hearing as the Father indicated that he was pressing his applications on an urgent basis.
At the commencement of the interim hearing Mr Khosravi apologised to the Court and asserted that he had left Court as he believed he was no longer needed.
Issues
The dispute at the interim hearing focused on whether [X] should be required to return to Sydney, presumably with the Mother, or whether she may remain with the Mother in Queensland.
The Father seeks the return of the Mother and [X] to Sydney and offered the sum of $200.00 to assist with the airfares to enable that to occur. The Father submits that the Mother can reside in the maternal grandparents’ home in [omitted]. The Father seeks to spend specified times with [X] on Wednesdays, Saturdays and Sundays. He is agreeable to supervision, including supervision by an appropriately qualified child carer and paying the relevant costs associated with that, in the interim.
The Mother seeks an adjournment and requests leave to file further material. Mr Khosravi was frank in his submissions and indicated that he had few instructions. After being given the opportunity to telephone his principal, he indicated that the Mother would not be returning to Sydney as she was not able to financially. Mr Khosravi submitted that the Mother was agreeable to a one-off visit, supervised by the maternal grandfather, between [X] and the Father to take place in [omitted], Brisbane.
The CDC Memo
As stated, the parties attended a CDC with Ms S, family consultant, yesterday. The CDC Memo states as follows:
“The child [X] is 6 months old. The parents married in 2007 and separated 6 months ago. The father (aged 31 years) has not sent the child since she was a week old. The mother (aged 28 years) moved together with her parents to live in the Gold Coast Queensland recently. She cares for [X] full time. She cited the need to protect [X] from the father as the reason for leaving Sydney. The father moved to Australia permanently from Lebanon in 2008. He has no relatives or long term friends in Australia. He works in [omitted].
Summary of agreement(s) reached:
That the father and [X] should have a supervised meeting ASAP. This could be held in either Sydney or Queensland, possibly utilising a combined supervisory approach of the maternal grandparents in the setting of a private contact centre – hopefully a place that can be sourced with no waiting list
Issues remaining in dispute:
Whether or not the father should spend time with [X]
Whether the father presents a risk to [X]
Whether the mother is unduly marginalising the father from [X]
Whether the father’s time with [X] should be supervised
Whether the mother should return to Sydney with [X]
Issues impeding resolution:
These are;
The mother’s allegations that the father presents a risk to [X]
Eg She said he had made a sexually explicit remark about [X] which caused her alarm…among other things. She said he is a potential risk but has not, as yet, harmed [X].
The father said that the mother’s claims are not true and denied any propensity to sexually (or otherwise) harm [X]
The father’s allegations that the mother is restricting [X] from him with the intention of denying him having a role with her
The father said he has always intended to play a full role with [X] and has been marginalised from [X]’s life by the mother and the maternal extended Family Court of Australia
The mother said her main goal is to protect [X] and that she needed to move to Queensland to get an AVO against the father as she was unable to successfully “get and AVO” in NSW
Finances
The mother said that the father left her and [X] in financial disability. She said he “locked her out of the apartment’ and did not give her the baby’s items on separation
The father said that he has supported the mother as much as his income will allow and that members of his work place gave numerous baby gifts which he gave to the mother – he said he had no reason not to give her items for [X]
Cultural issues
The mother said the father insisted on [X] being raised Muslim woman and she took this to mean he may wish to have her circumcised
The father said that the maternal extended family tried to “take over the raising of [X]” from the start
Impression
This matter requires extradition [sic] and a full assessment regarding the issues. The allegations made by the mother – if true or otherwise - are such as will have implications for [X]’s parenting arrangements. The fact that the father has not seen the child is of serious concern and thus, the suggestion of a one off meeting.”
Ms S concluded by making several recommendations:
·firstly, that further dispute resolution is unlikely to assist the parties;
·secondly, that a family report be prepared; and
·thirdly, that an Independent Children’s Lawyer be appointed.
Agreed and disagreed facts
The parties agree, or do not appear to be in significant disagreement, on the following:
·firstly, that they separated shortly after [X] was born; and
·secondly, that there had been discussions between their current and former legal representatives as to whether [X] would spend time with the Father.
·The parties are clearly in disagreement as regards the following:
·firstly, whether the Mother should return with [X] to Sydney; and
·secondly, what the spend-time arrangements between the Father and [X] should be.
Parties’ submissions
Ms Ede, for the Father, asked the Court to make the orders sought in the revised proposal handed up at the commencement of the interim hearing. She asked the Court to accept the following:
·that the Mother’s actions had meant that [X] had not spent any meaningful time with the Father since her birth;
·that the Mother is a long-term resident of Sydney, as are the maternal grandparents and her extended family;
·that the maternal grandparents own a property in [omitted], as evidenced by exhibit “AF1”, which it would appear is occupied by the maternal aunt;
·that, on her own evidence, the Mother is unemployed and on Centrelink benefits;
·that there is a need now to start building a relationship between [X] and the Father;
·that the Mother has acted inappropriately and covertly in denying [X] spending any time with the Father;
·that the Mother obtaining of a temporary protection order in Queensland in November was questionable;
·that the Mother provides no explanation as to why her solicitors waited until the eve of the return date of the Father’s applications to serve the documents they had filed nine days earlier;
·that the Mother was trying to “gazump jurisdiction of the Court”; and
·that the Father was agreeable to surrender his passport and have [X] listed on the airport watch list.
Mr Khosravi, for the Mother, was candid in the lack of instructions that he had. Indeed he commenced his submissions by stating “There was not a lot more I could say”. He asked the Court to accept the Mother’s evidence and concerns. Mr Khosravi was, unfortunately, unable to assist the Court with the following queries:
·when the Mother actually relocated to Queensland;
·why her solicitors waited some nine days to serve the documents, though it is noted that annexure D to the Mother’s affidavit makes it clear that the solicitors may have sent those documents earlier than the date they were filed;
·why the Mother waited until after service of the documents to seek a temporary protection order in Queensland; and
·why the maternal grandparents own a property in [omitted] and whether that property is occupied in light of Exhibit “AF1”.
Law and discussion
All parenting proceedings are governed by the provisions of Part IV of the Act. Parenting orders are defined in s.64B of the Act and deal with where a child is to live, the time a child is to spend with another person, or otherwise allocate parental responsibility in respect of a child.
Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CA through to s.60CC of the Act deal with how the Court determines the best interests of a child. The most relevant at the interim hearing were the primary considerations in s.60CC(2) of the Act and, where relevant, the additional considerations in s.60CC(3) of the Act. These considerations will be discussed further shortly.
With respect to interim hearings the Full Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) clearly guides the approach of this Court in making interim decisions and orders with respect to parenting disputes. At paragraph 81 of Goode the Full Court states:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly, this matter is such a case and highlights the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties is not being tested by cross-examination. Nevertheless, “the legislative pathway must still be followed”. That is to say that the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed.
There is considerable animosity and, it would appear, distrust between the parties in this case and, no doubt, the history of the matter will be the subject of evidence and cross-examination in the final hearing, should it be needed.
Parental responsibility
The Court is not in a position today to consider the issue of equal shared parental responsibility. The dispute today is simply limited to whether [X] should spend time with the Father and under what circumstances that time should be spent. That does, however, raise the issue of the presumption in favour of equal shared parental responsibility that arises in s.61DA of the Act.
Of direct relevance, however, to an interim hearing is section 61DA(3) of the Act which states:
“When the Court is 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 the order.”
This particular provision was discussed by the Full Court in Goode at paragraph 78 when they stated:
“…a discretion not to be exercised in a broad exclusionary manner but only in circumstances where limited evidence may make the application of the presumption or its rebuttal difficult.”
This is relevant to the interim hearing, however, I am clearly not in a position to deal with that aspect of the dispute at the present time.
Returning to Goode the Full Court, at paragraph 82, set out the approach that Courts should take. Firstly, identify the competing proposals, secondly, identify the issues in dispute and thirdly, identify any agreed or contested facts. This has been duly considered and set out above.
Primary considerations: section 60CC(2)
Section 60CC(2)(a) requires the Court to consider “the benefit of the child having a meaningful relationship with both of the child’s parents.” It is noted that “meaningful” does not mean “equal” however it clearly signifies that both parties should be involved with their child and clearly signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is the right of the child’s. Clearly, the Court will, in all likelihood, need to give considerable weight to this factor at a final hearing, should such be needed.
Section 60CC(2)(b) is also of relevance to consider “the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence”. There is no doubt it would be in [X]’s best interests to develop a meaningful relationship not just with the Mother but also with the Father. Of course that needs to be balanced in respect of protecting [X] from any physical or psychological harm and the like. Given the nature of the allegations here, the Court is satisfied that there is a need to test the issues as to whether [X] has in any way been psychologically harmed by recent events.
There are issues here warranting investigation and the Court needs to tread cautiously in the interim arrangements that will be necessary. This is particularly so given that there is a current temporary protection order obtained by the Mother in respect of the Father albeit in Queensland.
Additional considerations: section 60CC(3)
It is noted that pursuant to s.60CC(3)(a) it would be difficult to consider “the views of the child” in this case given that [X] is only six months old.
As to “the nature of the relationship between the child’s parents”, again we have different stories with the result that the parties’ evidence needs to be tested.
As to “the willingness and ability of each to encourage a close and continuing relationship”, that is a critical factor in this case. The Mother has made a unilateral decision to withhold [X] from the Father but, of course, there may be domestic violence considerations that may explain her actions. Again, these issues need to be tested.
As to “the extent to which each parent has fulfilled or failed to fulfil the responsibilities of a parent”, again we have different stories. These stories need to be tested. That said, issues of concern do arise when a parent withholds a child from the other parent notwithstanding the reason.
The Court is required to consider “the likely effect of any change on the child’s circumstances”. Clearly, there needs to be some change here. The present situation cannot continue. We cannot have a child being spirited off by a parent, for whatever reason, without a proper examination of the reasons for it.
As to “any other fact or circumstance”, Ms Ede questioned the motives of the Mother. It is clear that there was a correspondence trail between the parties’ legal representatives, both current and former. It is also clear that the parties were having discussions about the Father spending time with [X] that would suggest to the Court that the relocation only occurred recently.
Conclusion
Having considered the respective applications and submissions of the parties in light of the available evidence and the relevant statutory provisions the Court is satisfied that it would be in [X]’s best interests to restore her relationship with the Father.
The Court has no evidence before it today that the Mother’s fears of living in Sydney could not be dealt with by appropriate restraining orders.
The evidence is clear that the Mother could not move to Queensland for any other reason than to put distance between herself and the Father. She has accommodation available to her in New South Wales. The Father has offered to pay her flight costs and her income via Centrelink benefits should not be affected by returning to Sydney. Moreover Sydney has been her home, her parents’ home and, more importantly, [X]’s home since she was born until very recently.
Whilst the Father’s proposed minute suggests the Mother nominate a supervisor, which probably makes sense in most circumstances, there will be a requirement for the Father to be accompanied by a childcare worker or Mothercraft nurse. Clearly the times that such a childcare worker is available will need to be factored in. As such the Father may nominate the appropriate one-hour period.
I agree that the restraints proposed by the Father would be acceptable and would provide the Mother with comfort in respect of both parties being restrained from intimidating, assaulting, molesting, harassing or otherwise unnecessarily communicating with the other.
As recommended by Ms S, an order for the appointment of an Independent Children’s Lawyer will also be made today.
This matter will be listed for mention in early 2011 in order to consider the preliminary views of the Independent Children’s Lawyer and review the spend-time arrangements with the input of the parties.
Costs will also be reserved.
I reserve the right to settle the reasons for this interim decision.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate:
Date: 17 February 2011
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