GY and RM
[2005] FMCAfam 205
•31 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GY &RM | [2005] FMCAfam 205 |
| FAMILY LAW – Past recovery order – property – parties unmarried – section 114 does not apply – father residing in family home – mother seeks to evict father from home – no jurisdiction to deal with property issue – residence with father – contact with mother – best interests of the children – transfer to Family Court. |
| Family Law Act 1975 (Cth), ss.60B, 64B, 65D, 65E, 67ZC, 68B, 68F, 114 Federal Magistrates Act 1999 (Cth), s.39 Federal Magistrates Court Rules 2001 |
| AMS v AIF; AIF v AMS (1999) FLC 92-852 Cowling v Cowling (1998) FLC 92-801 Flanagan and Handcock (2001) FLC 92-074 K & K [2003] FMCAfam 214 L v T (1999) FLC 92-875 |
| Applicant: | GY |
| Respondent: | RM |
| File Number: | CAM856 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing date: | 29 March 2005 |
| Date of Last Submission: | 31 March 2005 |
| Delivered at: | Canberra |
| Delivered on: | 31 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms Twible |
| Solicitors for the Applicant: | KJB Law |
| Counsel for the Respondent: | Ms Lyndon |
| Solicitors for the Respondent: | Farrar Gesini & Dunn |
ORDERS
The orders previously made by this Court be discharged to the extent that they are inconsistent with the following orders.
The children, JRM and MAM, both born in 1994 and KSM born in1998 live with their father.
The children have contact with their mother as follows:
(a)Every second weekend from after school Friday until before school the following Monday, commencing 1 April 2005. If that weekend is a long weekend including a Friday, contact will commence after school on Thursday. If that weekend is a long weekend including a Monday, contact will conclude before school on Tuesday.
(b)From after school Thursday until before school the next day, commencing Thursday 7 April 2005.
(c)For one half of all school holiday periods being the second half in odd numbered years, the first half in even numbered years, and alternating thereafter.
(d)From 9am to 5pm on Mother’s Day if that day is not a contact weekend. If Father’s Day falls on a contact weekend the mother will return the children to their father at 9am on that day.
(e)At other times as agreed between the parties.
(f)By telephone at such times as agreed between the parties.
Notwithstanding these orders the children spend two hours with the parent with whom they are not residing on the children’s birthdays and the parents’ birthdays, at such time as to be agreed, and if there is no agreement from 5pm to 7pm.
Each parent will advise the other of a telephone number and address where the children will be whilst on holiday with the other parent.
The father be restrained from consuming alcohol whilst the children are in his care and for at least 12 hours prior to the children coming into his care.
Each party be and hereby is restrained from removing and/or causing or allowing the children to be removed from the Commonwealth of Australia.
The Australian Federal Police place the names of the children on the Airport Watch List enforced at all international points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list.
Costs be reserved.
These proceedings be transferred to the Family Court of Australia pursuant to section 39 of the Federal Magistrates Act 1999 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM856 of 2003
| GY |
Applicant
And
| RM |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore decision which has been revised and edited from the transcript. It relates to an application filed by GY (the mother) on
11 March 2005 in which she sought certain interim property and parenting orders. A response was filed by RM (the father) on
29 March 2005 contesting the orders sought by the mother.
Background
This matter has a difficult history, particularly in recent times, to which it is necessary to refer in a little detail.
The mother and father commenced living together in about
March 1990. They were never married and they separated in
May or June 2002. There are three children of the relationship: twins, JRM and MAM, who are almost eleven, and KSM who is just over seven years old
On 7 July 2003 Brewster FM made orders that until further order the mother be restrained from relocating with the twins.
On 21 July 2003 Brewster FM made further orders based on terms of settlement between the parties which provided essentially that the children live with their mother, that the children have certain contact with the father and that the mother not relocate the children from the ACT without the written consent of the father or order of the Court. There were certain other orders relating to denigration, discussion of some issues with the children, and the father being restrained from drinking alcohol. Two notes were added to the terms of settlement.
The next time the matter came before the Court on a substantive basis was following relocation and contravention applications by the mother and a contravention application by the father. These were considered on 18 October 2004 and dismissed, although Brewster FM noted that the mother was not present. She was therefore at liberty to have the matter relisted to reinstate her application at her own risk as to costs.
The matter next came to Court on 14 February 2005 when the father brought a contravention application because the mother had taken the children out of the ACT without his knowledge or consent.
I made orders issuing a recovery order to come into force at noon on
18 February 2005 for the children to be returned to the ACT. Those orders also provided that if the children were returned to the father under the recovery order, they should reside with him until further order. The orders also dealt with other related matters.
As a result of the police being unable to locate the mother a Commonwealth information order was made by Brewster FM on
21 February 2005. A further order was made by me on
3 March 2005 requiring the mother’s legal practitioners to disclose her address to the Court.
Following the recovery of the children on 5 March 2005, consent orders were made on 14 March 2005 providing for contact of the children with their mother. After the children were recovered they were returned to the family home in a suburb of the ACT.
Consideration
The first issue to be resolved is the father’s occupation of the family home to which the children were returned. The other issues flow to some extent from this first issue.
Eviction of the father from the family home
On Christmas Day 2004 the mother took the children to Queensland “for an extended holiday with my parents”. She says that she did not intend to remain in Queensland. Nevertheless she did not return with the children to the ACT, despite the children’s entitlement to have contact with their father and despite consent orders to which she agreed two years ago that she not relocate the children from the ACT without written consent of the father or order of the Court. Further the return date for the schooling of the children at their local primary school in Canberra was 31 January 2005.
Consequently I issued a recovery order to take effect on
18 February 2005. The police were unable to execute the order until 5 March 2005 due to difficulties locating the mother and the children.
The father advised this Court on 3 March 2005 that he had reoccupied the family home. Apparently that reoccupation took place on about
19 February 2005. His main reasons were that he could not afford to pay mortgage repayments on the home and also pay rent on his other premises, and that the bank had threatened to foreclose on the mortgage.
The children are currently residing at the family home in the ACT with the father. The home is jointly owned by parties, but as the mother and father were not married, this property is not property of parties to a marriage.
The mother now seeks the following order:
That the father be restrained from residing at [the family home]a in the Australian Capital Territory and be required to immediately vacate the premises.
Essentially she seeks the father’s eviction so that she can return to the premises and thus enable the children to reside with her at those premises.
Does the Court have power to make such an order in circumstances such as these, including where the premises are not matrimonial property and the person to be evicted is one of the two registered owners of the property?
Ms Twible, for the mother, relies on a number of heads of power in the Family Law Act 1975 (Cth) (the Act). Firstly, she referred me to s.68B(1):
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person who has a residence order or a contact order in relation to the child; or
(iii) a person who has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
Ms Twible relies specifically on paragraph (d)(i).
She referred me to two authorities: L v T (1999) FLC 92-875 and
K & K[2003] FMCAfam 214. She cites L v T as authority for a broad reading of s.68B. She says that in L v T:
the Court held that there was power under section 68B (as well as section 65D, 67ZC or 114) to order that a party attend upon a psychiatrist and undergo treatment as a condition of contact or residence.
However, I do not think it is quite as clear cut as suggested by Ms Twible.
The Full Court of the Family Court said in L v T:
51.Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order. The Court’s power to make any orders in circumstances such as these has to be found within the confines of ss 65D(1), 67ZC, 68B, or 114. (emphasis added)
What the Court is saying is that the power has to be found within the confines of those provisions. It is not saying that those provisions are broad heads of power for use in the way that Ms Twible suggests.
The Full Court went on to say:
60.Had the ongoing psychiatric treatment been imposed as a condition of contact, then, in our view, on the evidence available to her Honour such an order could well have been upheld. However, the form of the order leaves it free standing, and in our view it does not comfortably fit within any of the heads of power that we have identified.
Furthermore the Full Court did not distinguish between the various heads of power to which it was referred. But Ms Twible submits that:
… if the Court could make an order under s68B for such a requirement [as in L v T], that this indicates a broad interpretation of what is, in fact, “an injunction in relation to a child”.
In the proceedings before me she submits that an order restraining the father from remaining in the family home to enable the mother to return to reside there with the children would, in effect, be an injunction in relation to a child.
In K & K an application was made for exclusive occupancy of the former matrimonial home. Federal Magistrate Scarlett at [20] said:
The application for exclusive occupancy is brought under the provisions of section 68B of the Family Law Act. It is an injunctive order and it is described as an injunction in relation to children. Basically section 68B of the Family Law Act gives the Court jurisdiction to make such order or grant such injunction as it considers appropriate for the welfare of the children, which would include an injunction for the personal protection of the child, or an injunction for the personal protection of the child’s parents or a person who has a residence order or a specific issue order in relation to the child. That injunction could restrain a person from entering or remaining in a place of residence or employment or education of the child or entering or remaining in a place of residence or employment or education of a parent of the child, in this case the wife.
At [22] he notes:
Well, certainly the authorities relating to exclusive occupation tend to refer to section 114 injunctions or its predecessor.
The application in K & K was dismissed by Scarlett FM.
Ms Twible’s submissions on K & K were:
While the Court declined to make such a decision in that case it related to a situation where the parties were still residing under the one roof, I would submit in this case the welfare of the children considerations which are required to be taken into account … , the capacity of the father to obtain alternative appropriate accommodation, the concerns of denigration and the history of the mother and children residing in the Melba property, would all support an order being made in this case which enabled the mother and the children to return to/remain residing in the Melba property.
Alternatively Ms Twible relies on s.65D, which covers parenting orders. Section 65D(1) says:
In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.
Section 64B(1) sets out the meaning of a parenting order:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
Subsection (2) provides:
A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b)contact between a child and another person or other persons;
(c) maintenance of a child;
(d) any other aspect of parental responsibility for a child.
Ms Twible submitted that the decision of Kay and Holden JJ in Flanagan and Handcock (2001) FLC 92-074
noted that in relation to injunctions relating to a child’s name, the true nature of an injunction application may well be governed by section 65D instead of section 68B. … Similarly, in L v T it was held that s65D also provided the power to require the attendance upon the psychiatrist and treatment.
I have already indicated above that my reading of the decision in L v T is not as broad as Ms Twible asserts.
As a further alternative Ms Twible submits:
If the Court was not minded to make an order effectively enabling the mother to reside with the children in the Melba property under s 68B or 65D, … there is power under s67ZC.
Section 67ZC(1) provides:
In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
This is akin to the parens patriae jurisdiction of the state and territory Supreme Courts.
I have considered Ms Twible’s submissions very carefully. However, I cannot be satisfied that any of the three nominated heads of power would support the orders sought to evict the father from the family home. None of the authorities are directly on point.
The powers under s.68B are not at large or unconstrained. L v T is not, in my view, authority for reading s.68B as broadly as Ms Twible submits. More commonly orders made under s.68B are for the personal protection of a child, or that child’s parent, rather than as here, to regain occupancy of jointly owned premises.
As Scarlett FM says authorities on exclusive occupancy generally concern s.114. Section 114 is not available here as the parties were not married. For unmarried parties in the ACT the usual remedy is by action in the ACT Supreme Court.
The orders sought are not parenting orders, as commonly understood, nor would they fall easily within the parens patriae jurisdiction: see for example the discussion on the parens patriae jurisdiction and the limitations on it in L v T, and particularly the references in that case at [58] and [59] to the judgments of both Gaudron J and Hayne J in
AMS v AIF; AIF v AMS(1999) FLC 92-852.
In the case before me both parents occupied the family home which they jointly owned until separation in May or June 2002. The children resided with the mother at these premises with breaks for contact with the father and holidays. That residence was up until December 2004.
The mother left the home on 25 December 2004 with the children to go to Queensland. She did not return to the ACT as planned. The bank warned of foreclosure as payment on the mortgage had ceased. It is unclear whose responsibility the mortgage payments were. The mother enrolled the children in a school in Queensland.
The father, a joint owner, reoccupied the family home. The children have resided with their father since the execution of the recovery order on 5 March 2005. The mother seeks to reoccupy the home and have the children return to reside with her at that home which she appears to have, if not abandoned, at any rate vacated for some time.
In my view I cannot be satisfied in these circumstances that the Court has the power to evict the father from the home he jointly owns. This is a property matter concerning an unmarried couple which does not fall within the jurisdiction of this Court. Rather it is more properly one for the ACT Supreme Court, which can then be cross-vested to the Family Court.
Residence arrangements for the children
Until to 5 March 2005 the three children resided with their mother, with arrangements for contact with their father as set out in order 2 of 21 July 2003. On the untested affidavit material before me there are significant differences over when contact actually occurred and the extent of the contact up to December 2004.
Since 5 March 2005 the children have been residing at the Melba family home with their father, with some contact with the mother. The mother now seeks the children return to reside with her. She had hoped this would be at the family home. But in the alternative, if I rejected her application to have the father removed, she proposed residing at premises in a different suburb to the family home in the ACT, where she was temporarily residing.
The father seeks to continue to have the children reside with him until final orders. Then he proposes residence be on a week-about basis.
A range of competing considerations have been put to me on the residence issue. If the children resided with the father it would be at the family home which was furnished to accommodate all of them. They would continue to attend the nearby school.
If the children resided with the mother it would currently be in temporary accommodation in a different suburb in the ACT. This house is owned by an aunt of the mother’s former boarder.
This would be in a self-contained unit on the second floor, which I am told has three bedrooms, a lounge room, a kitchen and a bathroom. Currently there is insufficient bedding. There would have to be one further bed acquired, and this would still require the daughter to sleep in a double bed with her mother. So there would be a need to obtain additional furniture. This would be a temporary and not a permanent arrangement. If they were unable to stay here, the mother indicated she would seek assistance from ACT Housing.
For schooling the children would still attend the local, but they would travel by bus with the mother during the period that she remained unemployed. When she obtained a job she would put the children in after school care. She was unable to use her motor vehicle because it was unregistered. Until she paid unpaid fines of approximately $2,500, she would not be entitled to have the car reregistered.
The mother’s oral evidence left me with a distinct feeling of uncertainty and unease over her accommodation plans. Furthermore various allegations have been raised in the affidavit evidence which increase the uncertainty. These included issues such as the unacceptable state of the family home when she left to go to Queensland, or at least when the father reoccupied it, the mother’s relationship with her former boarder, and the allegation that the mother abandoned her job. There was also the issue of the alleged instability of the mother ‑ illustrated by her decision to remain in Queensland after just taking a holiday there, and her going to ground thereby requiring the issue and execution of a recovery order. There were also allegations concerning her mental health.
The mother alleged that the father had a drinking problem. His behaviour towards her was the factor, she said, that instigated her move to Queensland. She referred to allegations of denigration of her in front of the children. Questions have been raised about the father’s relationship with the children and the role he played particularly in failing to make use of contact times allowed for him. Allegations were made about him not meeting his child support obligations.
As I have stated, these are allegations in affidavit evidence which have not been tested. There is much in dispute and significant conflict between the various deponents. As such little weight can be placed at this interim hearing on the allegations.
The relevant statutory provisions are s.60B which establishes the objects and principles underlying Part VII concerning children. Section 65E then 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 68F(2) sets out various considerations which the Court must take into account in determining the best interests of the children.
In Cowling v Cowling (1998) FLC 92-801 the Full Court of the Family Court, having reviewed various authorities, summarised the relevant criteria for the determination of interim proceedings for residence and contact:
20.Firstly, having regard to the provisions of s 65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.
21.Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.
22.Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.
23.Fourthly, the Court is entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues: -
- whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.
- whether the current arrangements have been unilaterally imposed by one party upon the other.
- the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.
24.Fifthly, where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child’s best interest. In undertaking that evaluation, regard must be had to the interim nature of the proceedings and the procedure referred to in C and C ….
25.Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following: -
- the wishes, age and level of maturity of the child.
- the current and proposed arrangements for the day-to-day care of the child.
- the period during which the child has lived in the environment.
- whether the child has any siblings and where they reside.
- the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.
- the educational needs of the child.
It is clear that until as recently as 5 March 2005 the mother has been the primary care giver. But as a direct result of her own actions that responsibility passed to the father. She now seeks the return of the children to reside with her.
In the circumstances the recent instability in the children’s lives has been brought on by her actions. Obviously the children are not living in an environment that is well settled. They have not been since December 2004 when they went to Queensland.
However they are living in the family home. This is with the father with whom they have not resided for longer periods for almost three years, apart from the contact times with him.
The alternative for the children’s residential arrangements is an uncertain period in the mother’s current accommodation. The accommodation is temporary. It is unfamiliar. The house is also occupied by a person unknown to the children. The furniture is inadequate. The mother has no income, no job and some quite significant debts. Schooling would be some distance away. There is some uncertainty about the mother’s ability to finance child care. Most importantly the future at this location can only be described as speculative and uncertain.
I am not satisfied the children would be at risk with the father. He has agreed to an order preventing his drinking while the children are in his care. He also has a regular income.
The paramount consideration before me is the best interests of the children. In my view these are best served by the children residing with their father at the family home. This will return some stability and promote some stability in their lives, in that they will continue to live at a place and attend a school in familiar surroundings.
Contact
It is my view that liberal contact should be provided to the mother.
I propose to make orders consistent with those sought by the father with two additions: firstly, that there be further contact at times agreed between the parties, and secondly, that there be telephone contact also as agreed.
Transfer to the Family Court
Section 39 of the Federal Magistrates Act 1999 (Cth) provides for discretionary transfer of matters to the Family Court. Part 8 of the Federal Magistrates Court Rules 2001 provides further factors which I must consider.
I note that the hearing of the application for final orders is likely to take longer than two days. There is also a related property matter involving unmarried parties which is likely to be litigated. It is unclear to me what state that has reached at the present time, although an action was instituted in the ACT Supreme Court.
It is in my view desirable that the property and children’s matters be heard together in the Family Court. The property matter can be cross-vested to the Family Court. I therefore propose to order the transfer of the proceedings in this Court to the Family Court. I understand that there is no dispute about this.
Other issues
The mother has sought an order that the father be restrained from consuming alcohol whilst the children are in his care and for at least twelve hours prior to the children coming into his care. I understand the father has consented to this and I will make that order.
The mother also sought an order that her application filed in this Court in mid 2004 regarding relocation be reinstated. As I indicated at the hearing that is a matter that can be taken up in the Family Court. I do not propose to make any order on that. I understand that it is not pressed here.
The father’s proposed order 5 for the mother to attend upon a psychiatrist is not pressed. Proposed orders 6 and 7 are agreed between the parties. I will make those orders. Proposed order 8 is not pressed. I will reserve costs as requested by the parties.
Conclusion
I am not satisfied that I have the power to remove the father from the family home in which he currently resides with the children.
In the present circumstances I consider it is in the best interests of the children to continue to reside with the father, at least until a final hearing, and for the mother to have frequent contact with the children.
These are interim orders which must be finally resolved after a full hearing. I propose to transfer the matter to the Family Court for full determination of these issues and of the property issues over which I have no jurisdiction.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate:
Date: 6 May 2005
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