FEDERAL CIRCUIT COURT OF AUSTRALIA
Fink & Mallander [2021] FCCA 1218
File number(s): AYC 162 of 2021 Judgment of: JUDGE MCNAB Date of judgment: 14 May 2021 Catchwords: FAMILY LAW – interim parenting – relocation application – where both parties previously resided in the Town B area – where the mother unilaterally relocated to the Town C area – where the father had previously informed the mother of his opposition to the relocation – where the father had informed the mother he would file an application seeking parenting orders and a recovery order if the mother relocated – consideration of principles relevant to determination of relocation cases – child’s best interests paramount consideration – where there is a benefit to a child having a meaningful relationship with each of their parents – where protecting a child from a risk of family violence or harm is a paramount consideration – where there are allegations of family violence – where the mother was ordered to return to Town B area Legislation: Family Law Act 1975 (Cth) ss 60B, 60J, 68ZL Cases cited: Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
In the Matter Of: Re K Appeal [1994] FamCA 21
Morgan & Miles [2007] FamCA 1230
Sterry & Sterry [2017] FCCA 2255
Number of paragraphs: 39 Date of hearing: 14 May 2021 Place: Melbourne Counsel for the Applicant: Ms E Swart Solicitor for the Applicant: Skinner & Associates Counsel for the Respondent: Mr T Byrne Solicitor for the Respondent: Berry Family Law ORDERS
AYC 162 of 2021 BETWEEN: MR FINK
Applicant
AND: MS MALLANDER
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
14 MAY 2021
THE COURT ORDERS THAT:
1.The Mother return the residence of the children X born in 2011 and Y born in 2013 (“the children”) to the Town B area by 4:00pm on 28 May 2021 and upon her doing so, the children continue to live with the Mother.
2.In the event that the Mother does not return the residence of the children in accordance with paragraph 1, the children live with the Father.
3.Pursuant to s67U of the Family Law Act 1975 (Cth) a recovery order issue addressed to the Marshal of the Court, all officers of the Australia Federal Police and all officers of the State and Territory police services.
4.The persons to whom this recovery order is addressed are authorised and directed to find, recover and deliver the children X born in 2011 and Y born in 2013 to the Father, MR FINK, or a person nominated by him in writing, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that the children may be found.
5.The operation of the recovery Order pursuant to Orders 2 and 3 be stayed until 4 June 2021.
6.The parties forthwith do all acts and sign all documents necessary to ensure that…
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- Fink & Mallander [2021] FCCA 1218
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CaseChat Overview and Summary
The central legal issues before the Court were the appropriate interim parenting arrangements for the children, particularly in light of the Mother's relocation and the serious allegations of family violence made by the Mother against the Father. The Court was required to balance the principle that children benefit from a meaningful relationship with both parents against the paramount consideration of protecting children from risk of family violence or harm, as guided by the objects and principles of Part VII of the *Family Law Act 1975* (Cth). The Court also considered the impact of the parties' high level of conflict and the significant needs of the children.
McNab J applied the principles enshrined in section 60B of the *Family Law Act 1975* (Cth), which prioritises ensuring children have the benefit of both parents' meaningful involvement in their lives while protecting them from harm. The Court noted the significant allegations of family violence made by the Mother, which the Father largely denied, and acknowledged the difficulty in making final determinations on interim applications. Given the high level of conflict, the serious allegations, and the children's needs, the Court determined that the appointment of an Independent Children's Lawyer was appropriate to assist in determining the children's best interests.
The Court made orders for the children's return to the Town B area by a specified date, with the children to continue living with the Mother upon their return. In the event the Mother did not comply, the children were to live with the Father. A recovery order was issued, but its operation was stayed until a later date. The orders also provided for the children's re-enrolment at their previous school, detailed specific time arrangements for the Father to spend with the children, and included provisions for communication, information sharing, and injunctions restraining denigration and discussion of court proceedings in the children's presence. Further, the Court ordered the appointment of an Independent Children's Lawyer and directed the parties to attend upon a Family Consultant for the preparation of a Family Report, with a final hearing scheduled for a later date.
Orders
Orders of the court
AYC 162 of 2021
BETWEEN:
MR FINK
Applicant
AND:
MS MALLANDER
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
14 MAY 2021
THE COURT ORDERS THAT:
1. The Mother return the residence of the children X born in 2011 and Y born in 2013 (“the children”) to the Town B area by 4:00pm on 28 May 2021 and upon her doing so, the children continue to live with the Mother.
2. In the event that the Mother does not return the residence of the children in accordance with paragraph 1, the children live with the Father.
3. Pursuant to s67U of the Family Law Act 1975 (Cth) a recovery order issue addressed to the Marshal of the Court, all officers of the Australia Federal Police and all officers of the State and Territory police services.
4. The persons to whom this recovery order is addressed are authorised and directed to find, recover and deliver the children X born in 2011 and Y born in 2013 to the Father, MR FINK, or a person nominated by him in writing, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that the children may be found.
5. The operation of the recovery Order pursuant to Orders 2 and 3 be stayed until 4 June 2021.
6. The parties forthwith do all acts and sign all documents necessary to ensure that the children are re-enrolled at Town B Primary School forthwith and that the children recommence at Town B Primary School as and from 31 May 2021 or such earlier date as may be accommodated.
7. The Father spend time with the children as follows:
(a) On 29 May 2021 and 30 May 2021 from 9:00am to 5:00pm;
(b) Thereafter, each alternate weekend from after school or 3:30pm Friday to 3:30pm Sunday commencing 4 June 2021;
(c) For half of each Victorian gazetted school term holidays, from the conclusion of school on the last day of term to 5:00pm on the middle Saturday;
(d) For Father’s Day weekend, in the event that the children are not in the care of the Father, from after school or 3:30pm Friday to 3:30pm Sunday in lieu of the following weekend; and
(e) At such further and other times as may be agreed in writing between the parties (including via text message)
8. Changeover for the purpose of the Father’s time with the children is to take place at school on school days and otherwise at the Mother’s home at the commencement of time and the Father’s home at the conclusion of time noting that the parties are permitted to utilise agents at changeover.
9. Until such time as the children return to the Town B area, the children communicate with the Father by Facetime/Skype for up to 30 minutes between 6.00pm - 6.30pm each day, with the Father to call and the Mother to facilitate the call.
10. Each parent advise the other in the event that the children or either of them suffers any serious medical injury or illness, as soon as practicable after that injury or illness occurs, and provide the other with details of any treating practitioner.
11. Each parent is hereby authorised by these Orders to:
(a) Obtain at their own expense from the children’s school all notices, letters, school reports and invitations and to attend other activities to which parents are invited.
(b) Discuss all matters pertaining to the children’s welfare with their school and treating medical and allied health practitioners.
(c) Receive information and documents at their own expense from the children’s treating medical and allied practitioners.
12. The parents each keep the other informed at all times of their current residential address and contact telephone number and advise the other within 24 hours of any change to same.
13. The parents (themselves or through their servants or agents) be restrained by injunction from:
(a) denigrating the other, or members of the other party’s family, to or in the presence or hearing of the children or either of them and from permitting any other person to do so; and
(b) discussing any Court proceeding or the subject matter of them in the presence or hearing of the children.
14. The Mother be and is hereby restrained by injunction from relocating the children’s residence from the Town B area without the consent in writing of the Father or Order of the Honourable Court.
15. All extant interim applications be otherwise dismissed.
16. The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the documents produced by the Department of Families, Fairness and Housing in response to the Notice of Risk filed in these proceedings.
17. The parties and their legal representatives and Independent Children’s Lawyer (if appointed) are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.
AND THE COURT NOTES THAT:
A. The information produced is confidential and cannot be disclosed to any other person without an order of this Court.
B. Penalties may apply pursuant to section 112AD and section 121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.
THE COURT ORDERS THAT:
18. Pursuant to s 68L(2) of the Family Law Act 1975 the children (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they makes such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a) Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b) Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;
(c) The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at (http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Children%27s+Matters/Independent+Childrens+Lawyer), and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d) The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.
19. Pursuant to s 62G(2) of the Family Law Act 1975, the parties and the said children attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by 20 October 2021.
20. The Family Report to deal with the following matters:
(a) any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b) the capacity of each of the parents to attend to the emotional, physical and intellectual needs of the children, with reference to any medical issues of the children;
(c) the willingness and ability of each of the parents to facilitate and encourage the children’s relationship with the other parent;
(d) the nature of the relationship between the children and the parents;
(e) the likely effect on the children if the Court were to make Orders in terms of the Father’s/Mother’s proposed orders;
(f) any family violence within the definition of the Family Law Act 1975 which impacts on the living arrangements and parenting capacity of each of the parents;
(g) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(h) any other matters that the family consultant considers important to the welfare or best interests of the said children.
21. The parties send copies of all of their Court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.
22. If a party is not represented by a lawyer, then within 7 days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:
(a) all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;
(b) all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and
(c) any family violence intervention or restraining Orders currently in force.
23. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.
24. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.
25. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.
26. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
27. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a) A Children’s Court;
(b) A child protection authority;
(c) A State or Territory legal aid authority; and
(d) A convener of any legal dispute resolution conference.
28. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
29.
The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on
3 November 2021 at 10.00am
for Final Hearing, with an estimated hearing time of 1 day (“the Final Hearing”).
30. The parties have leave to amend their application and response PROVIDED the amended application or response is electronically filed and served no later than 14 days before the trial.
31. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:
(a) The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial;
(b) The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and
(c) The Independent Children’s Lawyer electronically file and serve any further affidavits to be relied upon by the independent children’s lawyer at the final hearing not later than 7 days prior to the trial,
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(d) the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(e) the party has first obtained leave of the court.
32. Not later than 4.00pm two business days prior to the trial all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a list of the significant factual issues requiring determination;
(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60cc factors);
(e) a list of contentions relevant to the operation of s.65DAA;
(f) a list of any other contentions relevant to the decision; and
(g) the actual orders sought.
33. No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.
34. Each party must have available for their witnesses copies of all affidavits and all of their documents that those witnesses shall be referring to at the hearing.
35. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
AND THE COURT NOTES THAT:
A. At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
C. 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 these particulars are included in these orders.
D. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Mother also seeks interim orders in respect of parenting arrangements as follows: (1)the application for interim orders sought by the Father, in particular in respect of the relocation and/or recovery order, be dismissed;(2)the children live with her, and continue to reside with her in the Town C area; and(3)the children spend time with and communicate with the Father in such a manner as is consistent with their best interests, but with such determination of interim time be reserved pending the completion of a family report; and(4)a family report be urgently prepared.CONSIDERATION A central issue in this case is the role of allegations of significant family violence and the effect those allegations have on the decision I have to make. By her affidavit filed on 3 May 2021, which was filed with her response to the Father’s initiating application, the Mother makes allegations of significant family violence, which is said to have occurred throughout the relationship, including physical and verbal abuse, and coercive conduct in relation to finances. The mother also makes allegations of rape against the Father, which is said to have occurred in December 2015, during the course of the relationship, and on 2 August 2016, where final separation occurred in June 2016. The Father has denied most of the allegations of family violence, although he does admit that both parties have referred to each other in strongly derogatory terms, both in writing and verbally, throughout the course of the relationship and following final separation. The Father has admitted to punching a hole in the bathroom wall/door and sets out the circumstances of that occurring and says it was not directed at the Mother or in her presence, but otherwise the Father has denied the allegations of the Mother. In making those denials, the Father has given detailed and, in large part, cogent responses to the matters raised against him. In reviewing the affidavit material, such as the exhibits to the affidavits of the parties and other deponents, including the Mother’s sister and the Mother’s partner, it is apparent that strongly derogatory language is commonplace in communications between all of the parties, including as between the Mother and her partner. I am not in a position to make any final determination about the veracity of the allegations of family violence, but I do note that they are significant and serious allegations on the one hand, and, on the other, that those allegations are denied. I also note that these parents have been able to co-parent these children since separation in 2016 without requiring Court orders. The Father has spent regular and systematic time with the children, consistently spending alternate weekends with them. Relocation cases are notoriously difficult and there is a significant body of case law dealing with the exercise of the discretion which is required to be exercised by the Court. The Court is guided by the principles set out in the Family Law Act that there is a benefit to a child having a meaningful relationship with each of their parents and that protecting a child from a risk of family violence or harm is a paramount consideration. Relevantly, s60B of the Family Law Act provides that:(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d) parents should agree about the future parenting of their children; and(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).