FONTAINE & HOGAN

[2015] FCCA 835

FEDERAL CIRCUIT COURT OF AUSTRALIA

FONTAINE & HOGAN [2015] FCCA 835

Catchwords:
FAMILY LAW – Parenting orders – mother lives in (omitted) – father lives in Western Australia – children have spent entire lives in mother’s care – father refuses to return children following period of time spent with children – mother seeks immediate return of children – Recovery Order made in Magistrates’ Court not executed – Department of Human Services’ involvement – orders made returning children to mother’s care.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 60CC(3)

Applicant: MS FONTAINE

Respondent: MR HOGAN

File Number: MLC 751 of 2015

Judgment of: Judge Hartnett

Heard at: Bendigo

Hearing date: 4 March 2015

Delivered on: 4 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Goldthorp

Solicitors for the Applicant: Stuthridge Legal

Counsel for the Respondent: Ms Simic

THE COURT ORDERS THAT:

1. The father prior to 8.00pm on Friday 6 March 2015 deliver the children X born (omitted) 2007 and Y born (omitted) 2010 to the mother inside the (omitted) Police Station and at his expense.

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

1. The children live with the mother.

2. The father’s time with the children be reserved.

3. The mother ensure that her partner Mr B not reside in her premises with the children and ensure that the children do not come into contact with Mr B.

4. There is liberty to apply to my chambers on short notice.

5. The mother’s costs are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 751 of 2015

MS FONTAINE

Applicant

And

MR HOGAN

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. This matter comes before the Court on an Initiating Application of the mother filed on 27 January 2015 and in the Magistrates’ Court of Victoria at Bendigo.  On 28 January 2015, that Court made orders, ex parte, which included a recovery order for the parties’ two children, X born (omitted) 2007 and Y born (omitted) 2010, to be returned (by the Australian Federal Police) to the care of the mother. 

2. The Magistrates’ Court also ordered on that day and until further order that the mother have sole parental responsibility for the children; that they live with her; that the time spent by the father with the children be reserved; and that the matter be transferred to the next sittings of the Federal Circuit Court at Bendigo.

3. In support of her Initiating Application, the mother filed an Affidavit sworn by her on 27 January 2015.  She also filed a Notice of Risk. In her Affidavit the mother set out the history of care of the children, which the father, in his responding material subsequently filed, took some issue with, but not as to the four matters below:-

   a)firstly, these are young children.  X was born in 2007 and he is now seven years of age, and Y was born in 2010 and she is now four years of age;

   b)secondly, the children have spent their entire lives in the care of their mother;

   c)thirdly, the children have spent little time since their birth with their father. In particular, it is agreed by the parties that between 2010 and 2014, the father did not see the children; and

   d)fourthly, and of particular concern in these proceedings, the children have special needs. 

4. X was diagnosed with autism at age four, and he attends the (omitted) Special School in (omitted).  The younger child, Y, is currently undergoing assessments for attention deficit hyperactivity disorder (‘ADHD’) and autism, and she has a blood clotting disorder that requires regular check‑ups with her general practitioner.  The children have the necessary supports for their special medical conditions in (omitted), and have been accessing them for the many years they have been in their mother’s sole care - years in which their father has been completely physically and, consequently, emotionally (in a positive sense) absent from their lives.

5. There is also another core issue of seeming agreement between the parties which is that the father has not been attending to his child support obligations.  As I understand from his solicitor’s submissions this day, he was not aware of them.  He is aware that he has two children.  He is, presumably, aware they need financial support.  He says he has provided some food vouchers and things of that nature to assist the mother and because he was concerned for the children in 2010.

6. In fact, the current child support assessed arrears, which is a matter the father is now dealing with, are as set out in the mother’s Affidavit and are in the sum of $14,585.16.  This is a considerable amount given the mother’s poor financial position, and given the father’s income. The father is gainfully employed on a (omitted) basis with a (employer omitted) company, and his income is, in submissions put by his solicitor (on instruction), approximately $80,000 gross per annum. 

7. It was suggested by the father that as the children have now lived with him for two months, the child support arrears might be adjusted somewhat.  They have been over held by the father for two months contrary to their best interests and the mother’s wishes.  Interestingly, the children ended up in their father’s care, despite the long period of time in which they had not seen him, by agreement between the mother and father, the mother encouraging the father to have a relationship with the children. The father claimed upon the children’s arrival that he was very concerned about them.  He has reported his concerns to the protection authorities in Western Australia, and they are investigating.

8. The Court is required to consider the best interests of the children, and pursuant to the legislation (s.60CA of the Family Law Act 1975 (Cth)) (‘the Act’), the Court, in deciding whether to make a particular parenting order in relation to a child, must regard the best interests of the child as the paramount consideration. In determining the child’s best interests, the Court is required to consider the matters set out in ss.60CC(2) and (3) of the Act.

9. The issue for consideration is the father’s statement that the children need to reside with him to protect them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence in the form of what he says are allegations made to the equivalent of the Department of Human Services in Victoria, but in Western Australia, which include an allegation of sexual abuse by the wife’s current partner, Mr B.

10. Ms Simic, the solicitor acting for the father, has indicated that the paediatrician who examined the children in Western Australia could find no physical harm suffered by them or either of them and could not tell whether, in fact, the children had been abused. He could not rule it out however.  The mother has indicated in her material she is perfectly happy to tell Mr B to live elsewhere while this matter is properly investigated here in Victoria, and I will make an order that Mr B do live elsewhere and not have any communication with the children, not because there is any finding to support such an order, but as a precautionary measure, not opposed by the mother, given the uncertainty of the claims that appear to have been made in Western Australia.

11. Turning now to the further matters required to be considered by the Court and highlighting those matters of particular relevance. The Court, when looking to the additional considerations as set out in s.60CC(3) of the Act, notes that the nature of the children’s relationship with their mother is that she is their primary attachment figure; the person with whom they have lived all their lives; who has attended to each of their special needs and exploration thereof connecting with necessary community supports in that regard; and, ultimately, the parent whom attempted to pursue a meaningful relationship between the children and their father. The nature of their relationship with their father is really unknown, save that it is not an extensive history. It is minimal physical contact, minimal financial support, and the children must really wonder what has occurred to their mother in her complete absence from their lives in the last two months.

12. The mother has taken full parental responsibility of the children in her care of them in the absence of the father over this very extended period.  The change the children are now undergoing in the absence of their mother could not be said to promote their best interests, and it is difficult to see how the father could think that.  It shows, on the father’s part, an extraordinary lack of insight.  The father now says the mother can communicate with the children via telephone.  These are children who, as I say, have spent their entire lives in the care of their mother.

13. The father also works in his (omitted) job, which involves a two‑week rotation.  He did not put in his material who is caring for the children currently when he is not there each second fortnight.  It appears his new wife is.  The father failed to communicate with the mother at all about any of his concerns.  He seeks in his Response filed 18 March 2015 that the children reside with him and that he have, on an interim basis, sole parental responsibility of the children. He seeks the time spent with their mother be reserved. This response is utterly insightless.

14. The father says in his Affidavit sworn 23 February 2015 that he was very concerned about the children’s wellbeing when he visited (omitted) with his wife, and stayed for four days in May 2011.  He says he observed various matters which raised a concern that the mother was unable to properly look after the children.  He then listed what his concerns were.  He objected to Mr B at that time on the basis that he observed him smoke marijuana in a room which was right across from the children’s bedroom, and he believes that the children saw that.  Despite the various concerns he now raises in his affidavit material, he returned to Perth. He remained in telephone contact only with the children.

15. In November 2014, some two and a half years later, he and his wife decided to travel to (omitted) again to visit the children.  On this occasion, they stayed for five days.  This is the extent of his periods in (omitted) to see his children in the last few years.  When the mother in these proceedings agreed for the children to go and spend some time with their father, they arrived in Perth to see him on 7 January this year.  The father says in paragraph 29 of his Affidavit sworn 23 February 2015:-

    “During my rare conversations with the Applicant, I never advised the Applicant that I would bring our Children on 27 January 2015, … as my financial circumstances at the time meant that I did not have money to pay for the flights again.  I have advised the Applicant of this.  The Applicant did not say anything in return.”

    And further at paragraph 32:-

    “I have never advised the Applicant I would return our Children on 27 January 2015, and I do not have the financial means to do so…”

16. The father is a man who is in receipt of a not inconsiderable income as a result of his constant employment.  The mother is fully engaged in caring for the children.  The mother agreed to the children spending some time with their father in Perth, and at his expense.

17. The actions taken by the father since the children have arrived in Western Australia have resulted in the Australian Federal Police not executing the Recovery Order that was made initially in the Magistrates’ Court at Bendigo.  At the present time, I am not fully appraised as to why, in fact, that has not occurred, although the mother deposes to some relevant matters in her affidavit materials including a subsequent Affidavit sworn by her on 27 February 2015.

18. The mother describes, following the making of the Recovery Order in the Magistrates’ Court at Bendigo, attending in Western Australia personally, the Western Australian Police indicating they would not execute such Recovery Order unless she was present.  Given her limited financial means, she had to borrow money from her family and obtain an emergency payment from Centrelink to purchase her plane ticket to Perth and ensure she had enough money for a return flight for herself and the children.  She departed Melbourne for Perth on 30 January 2015.  Her travel was arduous.  She was put in a very difficult position and was unable to obtain the recovery of the children. She claims the police indicated to her that they could not execute the Recovery Order because the Department for Child Protection and Family Support in Western Australia were currently investigating reports that had been made as to the children being at risk if they returned home to the mother.  The mother was very distraught at this outcome and was required to make the long journey home without her children.

19. The mother has contacted the Department of Human Services in Victoria, and they will be involved here once the children are returned to the mother.  The mother says that she has spoken to her partner, Mr B, who denies ever abusing the children. Any assessment of the children should be conducted here in Victoria where the children have lived, and do live.  The children need immediately to be returned to their mother’s care and resume their lives in (omitted) (that promoting their best interests).  The living of such lives has been carefully structured, to promote the children’s best interests in particular given their special needs. I shall make the orders necessary to achieve that outcome.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  9 April 2015