Eastwood & Wahlman
[2023] FedCFamC2F 759
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eastwood & Wahlman [2023] FedCFamC2F 759
File number: SYC 162 of 2023 Judgment of: JUDGE YOUNG Date of judgment: 13 June 2023 Catchwords: FAMILY LAW – application for review – where the mother unilaterally relocated with the children – where the father has not seen the children since December 2022 – where the mother makes allegations of family violence against the father – where the mother has obtained a provisional apprehended violence order against the father – where it is alleged the father has breached the provisional apprehended violence order - where the father is facing criminal charges – where it is appropriate the orders made by the Registrar are adjusted – where the court is not satisfied a recovery order should be made Legislation: Criminal Code Act1995 (Cth) s 474.17 Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 13 June 2023 Place: Darwin Counsel for the Applicant: Ms Holly Pitt Solicitor for the Applicant: Essia Law Counsel for the Respondent: Ms Emma Mason Solicitor for the Respondent: Mason Mia & Associates ORDERS
SYC 162 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EASTWOOD
Applicant
AND: MS WAHLMAN
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.This is an order that is inconsistent with the provisions of a Domestic Violence Order and, in accordance with s.68P(3) of the Family Law Act 1975 (Cth), a copy of this Order will be provided to:
(a)The Registrar of the Local Court of New South Wales (Domestic Violence Order Case Number …);
(b)The Commissioner of the New South Wales Police; and
(c)The children’s most recent case manager or investigating officer at the NSW Department of Communities & Justice.
2.Order 3 of the orders made on 6 April 2023 be amended as follows:
(a)For 8 weeks on alternate weekends:
(i)Saturday from 12.00pm to 3.00pm; and
(ii)Sunday from 10.00am to 1.00pm.
(b)For a further 8 weeks on alternate weekends:
(i)Saturday from 12.00pm to 5.00pm; and
(ii)Sunday 10.00am to 3.00pm.
(c)For a further 8 weeks on alternate weekends:
(i)Saturday from 12.00pm to 5.30pm; and
(ii)Sunday from 10.00am to 3.30pm.
3.Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for X born in 2020 and Y born in 2019 (the children).
4.Legal Aid NSW is requested to make arrangements as soon as possible for appropriate representation for the children and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
5.The Court advise Legal Aid NSW of this order forthwith.
6.Within 7 days of notification of the Independent Children’s Lawyer’s appointment or the filing of the Notice of Address for Service by the Independent Children’s Lawyer, each party make available to the Independent Children’s Lawyer copies of all applications, Notices of Child Abuse, Family Violence and Risk and affidavits upon which that party relies together with any court orders and copies of any relevant reports.
7.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter.
8.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X born in 2020 and Y born in 2019 (“the children”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video call, using Microsoft Teams, 18 September 2023, with:
(a)The Applicant to attend at 9.00am; and
(b)The Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at theMelbourneParramatta Registry on the morning of 19 September 2023. Specific details regarding the attendance of the parties and children on this date will be provided to the parties in Part 1 of the event.9.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
10.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
11.Not later than 4.00pm on 30 June 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].
12.Pursuant to order 8 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court on the children;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
13.Upon completion, the Child Impact Report shall be provided to the Registrar for release to the parties, including by way of order made in Chambers.
14.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Material produced by a Child Protection authority pursuant to subpoena or a Section 69ZW order made in these proceedings;
(b)Material produced by a Police Service pursuant to subpoena or Section 69ZW of the Family Law Act 1975 (Cth) or Section 245D of the Children and Young Persons (Care And Protection) Act 1998 (NSW) made in these proceedings;
(c)Any other relevant material presently before the Court in admissible form.
15.The matter remain listed before Judicial Registrar B for mention on 10 July 2023 at 2.00pm
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Eastwood & Wahlman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Young
This is a review application concerning two children, X and Y, who are four and two. The parents separated in December 2022 when the mother left City C with the children and went to live in Sydney, or perhaps City D where her parents live, and has remained there since.
The father initially sought orders for the relocation of the mother and the children back to City C but on 6 April orders were made by a Senior Judicial Registrar (SJR) that, essentially, refused that application and permitted the mother to remain living in Sydney or City D and for the father to spend time with the children during the day time for a few hours on each day in three stages: Wednesday and Sunday in each week for three hours; after eight weeks, Wednesday and Sunday for five hours; and after eight weeks, Wednesday and Saturday for six hours.
The father has not availed himself of any of that time and has not seen the children face-to-face since December 2022. There is some dispute about whether or not the children have been communicating with their father electronically by FaceTime.
There are orders for the children to communicate with the father electronically. There have been disputes, however, about whether that has been effective or not. The mother says it has been more or less effective. The father says the mother interrupts the calls. I am not able to reach any conclusion about that on the evidence before me.
The mother makes allegations of family violence against the father. She says in her notice of abuse that it has consisted of sexual violence, financial violence and emotional violence. I have read the mother’s material carefully and I consider that the evidence of historical family violence before separation is slight. It was alleged that the father threw an object at the wall during an argument in 2020 and that in an argument he threw over a couch in 2021. It was alleged that after the separation the father refused to let the mother return to the unit in City C where they lived to collect her possessions.
The mother also alleges that the father was very hostile to her step-father in a way that constituted isolating her from her family. While it is clear enough that the father was hostile to the mother’s step-father, it is not clear to me that he was intent on isolating her. I am not convinced that the mother has a basis on which to fear the father in relation to those matters.
However, the mother has obtained a provisional apprehended violence order in New South Wales and she did that on the basis of the father sending multiple text messages to her in early January where, effectively, he is attempting to persuade her to return to City C. There are multiple messages and it may be, as the police concluded in deciding to take out a provisional apprehended violence order, that there was an unreasonable number of the messages. The content of the messages is not threatening or menacing as far as I can see.
The provisional apprehended violence order was made in January 2023. The messages sent in January were not in evidence, but there is nothing to suggest that the content was menacing or threatening. Counsel for the mother conceded that it seemed to be that the volume of the messages was the harassing component rather than their content.
In February 2023, in what appears to have been a clear breach of the provisional apprehended violence order, the father sent a multitude of other messages to the mother attempting to persuade her to return to City C with the children. In those messages he also included what appeared to be the text of earlier conversations between him and the mother and also pictures of the mother that were taken from what appears to have been what is called an Online Website, which contains explicit photographs of the mother.
The content of those messages, again, does not appear to be threatening or harassing to me. The apparent reason, on my reading, that the father included the earlier messages between him and the mother, and the explicit photographs taken from her Online website, is that he intended to rebut an allegation that the mother makes against the father that he forced her to participate in the production of online pornography.
The material does not support that allegation. On the contrary, the material seems to support the proposition that the mother engaged in that activity enthusiastically and if anything, the father appears to have agreed to go along with it to placate the mother, or even avoid conflict with her over the subject.
In any event, the sending of those messages – and there is no evidence of any further messages having been sent by the father after the provisional apprehended violence order in January 2023 – was that he has been charged with a breach of an apprehended violence order. As the terms of the apprehended violence order forbid communication, it appears to be a clear breach.
According to the mother’s affidavit, which was filed on the portal yesterday evening and which was received without objection, those communications do seem to be in breach of the AVO because one of the conditions of the AVO is that there should not be electronic communication, or any contact with the mother.
The father has also been charged, I am told in the mother’s affidavit, with using a carriage service to menace, harass or cause offence as a result of those same breaches, if, indeed, they are breaches. That offence consists of using a carriage service and, of course, using the telephone, in such a way that reasonable persons regard as being, in all the circumstances, menacing, harassing or offensive. Nothing in the material I saw was menacing or threatening.
Having regard to one aspect of the dispute between the parties, that is, the allegation by the mother that she was forced into production of pornography, the father’s challenging of that in those messages would appear to be, on one level, at least, reasonable, and I would not consider it offensive. Whether or not it is harassing is a somewhat different matter and I do not express any real conclusion about that but if the test is proof beyond a reasonable doubt, I would consider that at least open to doubt and, all in all, I am not convinced that it is a strong charge against the father. It is not for me to determine, however.
Nevertheless, at this stage, the father faces criminal charges for breaching a provisional apprehended violence order and, it would appear, for an offence under section 474.17 of the Criminal Code Act1995 (Cth) with the mother as the victim. Those charges will be resolved, I am told, in a hearing in City D on 26 June 2023. In all the circumstances, I am not prepared to make the order that the father seeks, which is for an order that the mother relocate the residence of herself and the children to City C. I am far from satisfied that she was justified in doing so in the way that she did, by way of unilateral relocation, in a way that, on the face of it, has deprived the father of being able to maintain any meaningful relationship with his children.
The authorities are generally reasonably clear that such a unilateral relocation should not be permitted prior to a trial to determine all of the issues. One of the exceptions to that, of course, is if there is a risk to the physical or mental health of a party or the children. I am not satisfied there is such a risk in this case, with the exception that there is an outstanding criminal charge which I have briefly described and I think, in those circumstances, it is not appropriate to make such an order.
I consider that there is some substance in what the father says about the present orders being impracticable as they would appear to require him to travel from City C to Sydney, a return journey, twice a week, which I am told is in excess of 1000 kilometres return. I do not consider that practicable. I think the orders do need some adjustment.
The other issue is that the father, if an order for relocation is not successful, seeks an order that changeover occur approximately midway between City C and Sydney or and that the children spend from Friday to Sunday with the father.
The mother points out – and this is not contested – that the children have not actually spent any overnight time with the father since their parents separated. That, in my view, is a subject that needs to be approached cautiously, particularly as the children have not seen their father in five months. Adding to that concern is the fact that the father has not acted upon the present orders to spend any time with the children. It was open to him to do so but he has chosen not to do so. Various reasons for that were offered but I am not convinced that the distance or the expense or the impracticality has stopped him spending any time whatsoever with the children. That would appear to be implausible.
If the father had spent some regular time with the children– and subject to the resolution of the criminal charges against him – I would have been more inclined to consider his proposal that there be a changeover midway between City C and Sydney and weekend time, which, if the children were of an age to tolerate that and were confident with him, would be an appropriate order. The mere fact that the children have not spent any time with him over the past five months, entirely, it would seem, as a result of the father’s own choosing, means that I should not do that at this interim stage.
Nevertheless, if the father wishes to spend time with the children, I think he should be permitted to do that but on terms that the orders made by the SJR relate to a weekend, so if the father travelled to Sydney, for example, he could stay overnight in Sydney and spend time with the children on both days. I think that would make life easier and the mother does not oppose that. I propose to make orders to that effect and I think, given the father’s failure to act on the current orders to spend any time with the children, it is probably unrealistic to think that that’s going to be every week.
I propose to make orders for the father to spend time with the children on Saturday and Sunday each fortnight, starting not from this coming weekend but the weekend after, on condition that the father provides 14 days’ notice to the mother if he proposed to spend time with the children pursuant to those orders. I also propose to make an order for the appointment of an ICL and I will make an order for a Child Impact Report. I do not know when that will be available, but there will be a time for that included in the orders.
Otherwise, the matter will go back to Senior Judicial Registrar B on 2 July at 2 pm for mention. If the criminal charges against the father are resolved, and particularly if they are resolved favourably, and there is some evidence of the father actually having spent time with the children, it would appear to me that the renewal of the application that he has made that the that the children spend overnight time with him could be made again in the future.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Young. Associate:
Dated: 13 June 2023
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