EDMONSON & ALBAUGH

[2020] FCCA 2526

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDMONSON & ALBAUGH [2020] FCCA 2526

Catchwords:
FAMILY LAW – Parenting – recovery application in respect of a child who is 4 years old – where the father lives in City B and the mother lives in Darwin – where the child lives with the father not pursuant to any Court order – where the father accompanied the child to spend time with the mother in the school holidays – where further consideration of the situation is appropriate.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR EDMONSON

Respondent: MS ALBAUGH

File Number: DNC 434 of 2020

Judgment of: Judge Young

Hearing date: 21 August 2020

Date of Last Submission: 21 August 2020

Delivered at: Darwin

Delivered on: 21 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Marris

Solicitors for the Applicant: Marris & Co.

Counsel for the Respondent: Ms Coetzee

Solicitors for the Respondent: Northern Territory Legal Aid Commission

ORDERS

UNTIL FURTHER ORDER:

1. The child X born in 2016 (“the child”) is to live with the mother and spend time with the father at times as agreed by the parties.

2. The respondent may be served with any documentation through her legal representative the Northern Territory Legal Aid Commission.

AND THE COURT ORDERS:

1. The respondent is to file and serve a response, affidavit in support and notice of risk within 7 days.

2. Pursuant to section 69ZW of the Family Law Act 1975 the Department of Child Safety, Youth and Women (Qld) provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising or relating to the child X born in 2016;

   (b)any assessments or investigations into such abuse allegations;

   (c)the outcome or findings of any such assessments and investigations; and

   (d)copies of any reports received by Department of Child Safety, Youth and Women (Qld) in the course of investigating any such notifications.

3. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Child Safety, Youth and Women (Qld) without the Courts leave.

4. That pursuant to s.11F of the Family Law Act 1975, the parties and the children Y aged 14 years old (DOB not on Court record) and Z aged 11 years old (DOB not on Court record) do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 31 August 2020 at 9.00am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance NOTING: that the conference will be conducted via Microsoft Teams AVL link and the family consultant will liaise with parties regarding how they will attend the conference.

5. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

6. The matter is adjourned to 4 September 2020 at 10:30am (ACST) for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 434 of 2020

MR EDMONSON

Applicant

And

MS ALBAUGH

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.

2. This is a recovery application in respect of a child, X, who is four years old.  The mother hasn’t filed any material and I understand the application was only served on her yesterday.  Notwithstanding that the application was made urgently and was filed on 14 August 2020 and it would have been given an urgent listing very soon after that.  I am not sure what the reason for the delay in service.

3. In any event, the background as I understand it is the parents separated some time in 2018 in City B in Queensland.  The child, X, is the only child who is a child of the parties but the mother has three other children: Mr C, who is 18, Y, who is 14, and Z, who is 11 years old. 

4. It appears that in March 2019 the mother agreed with the father that she would move to the Northern Territory to work, according to her counsel Ms Coetzee “temporarily”, but in reality it appears that really the word should be indefinitely because there was no return date agreed, and the three children, Mr C, Y and X, were left by agreement living with the father in City B.

5. The other child, Z, apparently suffers from glaucoma and she was in Adelaide, for some reason, for a considerable time staying with her father’s mother.  The elder children have different fathers and so she was not involved, but Mr C, Y and X stayed living in City B with the father by agreement.

6. It appears that it was agreed that Y and X would travel to Darwin with the father in the July school holidays to spend time with the mother. There are no parenting orders in place and the mother has since refused to return X to the father.  The father takes the view that Y, who is not his biological child, is old enough to make up her own mind at 14.  She apparently has decided to remain living with her mother in Darwin. 

7. I asked Ms Coetzee what the risk of harm was, if any, should the child be returned to the father.  Ms Coetzee told me that there was a domestic violence order made on 6 February 2018, which apparently will remain in place until 6 February 2023, that is five years.

8. Ms Coetzee did not make any allegation, as far as I understand it, that there had been a breach of the domestic violence order against the mother, though there was some allegation that there had been some breach in respect of Mr C.  I thought those allegations were vague in the extreme.

9. Ms Coetzee also alleged on instructions that the children had been exposed to excessive drinking by the father. Again, the allegations were vague in the extreme.  It was said that there had been complaints made to the child welfare authorities in Queensland in February or March 2020, but as there is apparently nothing more heard, it would appear likely that those complaints were not substantiated.  However, that is really informed speculation, nothing more, so I know nothing about that.

10. It is also significant, in my view, that at no point has the mother made an application to the Court of the appropriate jurisdiction that the children should live with her, which would be, one would expect, the response of someone who was concerned about the welfare of the children if they were being exposed to abuse or neglect, as appears to be the allegation made now.  I say that in the context where I was told by Ms Coetzee that the mother travelled to Queensland in November of last year and sought legal advice about her situation and similarly has sought legal advice in July this year.

11. Certainly, in the case of the visit in November 2019, there was no application made.  Nevertheless, if that is all there was to it, I think I would have no hesitation in making the order sought by the father.  However, the matter that gives me pause is this.  It seems that Mr C, who is an adult now, no longer lives with the father.  It seems that Y, at 14, is living with the mother and that will remain unchanged, and Z, who is 11, is also living with the mother.  In other words, the two siblings who are still children, Y and Z, are living with the mother and that is unlikely to be disturbed.

12. In the circumstances, I think there probably does need to be some further consideration of the situation and whether it is appropriate to make a recovery order on one day’s notice.  I am not satisfied that it is at this stage. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 8 September 2020