HA and JA
[2004] FMCAfam 709
•9 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HA & JA | [2004] FMCAfam 709 |
| FAMILY LAW – Children – interim residence – status quo. |
Family Law Act 1975 (Cth), s.68L
AM Cowling & JH Cowling [1998] FamCA 19
| Applicant: | HA |
| Respondent: | JA |
| File No: | PAM5318 of 2004 |
| Delivered on: | 9 November 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 9 November 2004 |
| Judgment of: | Emmett FM |
REPRESENTATION
| Solicitors for the Applicant: | Ms Soliman, Legal Aid Commission of NSW |
| Counsel for the Respondent: | Ms Langley |
ORDERS
Pursuant to s.68L of the Family Law Act 1975 the children JAA, EA, AA and MA be separately represented and request that the Legal Aid Commission of New South Wales provide that representation.
Direct each party to provide to the Legal Aid Commission within 7 days copies of all documents filed on their behalf.
The child JAA reside with the Applicant mother.
The children EA, AA and MA (“the Children”) reside with the Applicant mother.
The Respondent father ensure that the Children be available for collection at 20 Smith Street Wentworthville at 7.30pm tonight, 9 November 2004.
Note that the Applicant mother’s brother MAA will collect the Children from 20 S Street W and deliver the Children to the Applicant mother.
The Applicant mother ensure that the Children return to the KF School on 10 November 2004 at the commencement of the school day.
The Respondent father is hereby restrained from having any contact with the Children, except as follows:
(i)Each alternate weekend from 10.00am Saturday to 4.00pm Sunday commencing 27 November 2004. The Applicant mother will deliver the Children to the Respondent father’s home at the commencement of contact and the Respondent father will deliver the Children to the Applicant mother at the home of MAA at 5 F Rd W at the conclusion of contact;
(ii)Each Wednesday from after school until 8.30pm commencing
17 November 2004. The Respondent father is to collect the Children from school and to deliver the Children to the Applicant mother’s care at the home of MAA at the end of contact;(iii)In the event that a Wednesday is not a school day then the Respondent father is to have contact between 10.00am and 8.00pm. The Applicant mother is to deliver the Children to the Respondent father’s home at the commencement of contact and the Respondent father will deliver the Children to the Applicant mother at the home of MAA at 5 F Rd W at the conclusion of contact;
(iv)The Applicant mother is to ensure that the Children are available for telephone contact each Monday and Friday between 7.00 and 7.30pm;
(v)From 4.00pm on 26 December 2004 to 4.00pm on 16 January 2005. Following the period of block contact the alternate weekend contact will recommence on Saturday 29 January 2005.
The Respondent father is to have contact with the child JAA:
(i)Each alternate Sunday from 1.00pm to 4.00pm commencing
28 November 2004. The Applicant mother is to deliver JA to the home of the Respondent father at the commencement of contact and the Respondent father is to deliver JA to the care of the Applicant mother at the end of the contact to the home of MAA.(ii)From 10.00am to 4.00pm on 16 January 2005 and each alternate Sunday thereafter.
Each party is to notify each other of any change of address or telephone number within 24 hours.
Each party is restrained from physically chastising any of the Children.
The matter is transferred to the Family Court and I request that the matter be listed before the Deputy Registrar on 18 November 2004 at 9.45am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM5318 of 2004
| HA |
Applicant
And
| JA |
Respondent
REASONS FOR JUDGMENT
Competing applications
The Applicant mother seeks Orders on an interim basis that the children EA, AA, MA, and JA (“the Children”), reside with her and that the Respondent father have contact.
There is no issue in respect of the child JA.
The Respondent father in his Response seeks an interim order, amongst others, that the 3 older children reside with him with the Applicant mother to have contact.
Background facts
The parties both agree that as at 8 October 2004 they had separated.
Between 15 October 2004 and 19 October 2004 the Respondent father was in Melbourne. When he returned from Melbourne the Respondent father said in his Affidavit that he asked his brother to telephone the Applicant mother to see when he could see the Children and was told that he was not allowed to see them nor telephone them.
The Applicant mother, in her Affidavit, refers to a telephone conversation on 19 October 2004 from HAA, who is the wife of the Respondent father's brother, which is in different terms to that version stated by the Respondent father.
It is common ground that:
a)on 22 October 2004 the Children were collected by the Respondent father from the bus stop at which they were to go to school, having been delivered there by the Applicant mother in time for them to catch a bus to their school at KF School;
b)the collection of the Children by the Respondent father was without notice, discussion nor agreement with the Applicant mother at the time;
c)until 22 October 2004 the Applicant mother had had the primary care of the Children;
d)from 22 October 2004 to date, the Applicant mother has not seen the Children, has had no conversation with the children AA or MA but has had telephone contact with EA;
e)the Children have not attended school since 22 October 2004 although the Respondent father states that they have been doing homework.
The Respondent father states that he did not return the Children to the Applicant mother although it was his intention at the time he collected the Children to do so at the end of that weekend.
The Respondent father accepts the evidence of the Applicant mother at paragraph 34 of her Affidavit in respect to the conversation where the Respondent father said that he was thinking of returning the Children on Monday on condition that he could see them whenever he wanted and that the mother said:
“I can't have you seeing the children whenever you want”
and that she would be asking the Court for contact orders.
The Respondent father then responded:
“So you want to take this to Court”
and the Applicant mother said:
“Look, you can have the kids.”
The Respondent father submits that the request to have the contact with the Children whenever he wanted was no different to what had occurred in the past.
However, I note that whilst there have been difficulties throughout 2004, both parties seem to agree that separation occurred on 8 October 2004, in which case I am satisfied that there was no real regime in place between the parties as to the nature of the contact to be had by the Respondent father.
Thereafter, the Applicant mother had communications with the daughter EA that culminated again in common ground that the Applicant mother was told by EA that the Children did not wish to return to her and wished to live with the Respondent father.
The Applicant mother submits that there is a change in tone between the messages and conversations that she had with the daughter EA from 25 October 2004 and 30 October 2004. The Applicant mother submits that that is the influence of the Respondent father in seeking to alienate the Children from the Applicant mother.
Certainly there is no evidence from the Respondent father of active steps taken by him to ensure that the children MA and AA had an opportunity either to speak with their mother, or have contact with their mother, and on 30 October 2004 when the parties had a conversation about the return of the Children, the Respondent father took the Children to the police and had EA bring her mother and confirm that she had told the police that she and the Children wished to stay with their father.
I regard that as extraordinary conduct on the part of a parent to involve the Children in a dispute which is one that should remain with the parents. I find it disturbing enough that the Children were taken to the police at all; I find it even more disturbing that the child EA was to be the messenger to the Applicant mother of that incident.
Relevant law
In considering what orders to make on an interim basis, I have regard to the principles in AM Cowling & JH Cowling [1998] FamCA 19 (“Cowling”) in relation to the importance of maintaining as far as possible stability in the Children's lives pending final orders. The Full Court of the Family Court in paragraph 23 of Cowling relevantly stated that:
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 the 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 another; 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.
The Respondent father submits that the status quo does provide stability and should not be upset, there being no evidence that the Children are at any risk of physical, mental or moral welfare.
I accept that submission so far as it goes to any evidence that the Children are at any particular risk, but I am not satisfied that the residence of the Children with the Respondent father is the relevant status quo having regard to the circumstances in which it came about, as up until 22 October 2004 plainly the Applicant mother was the primary carer of all 4 children.
It is of particular concern that since the Children have been with the Respondent father they have not attended school. I do not accept that doing some homework is sufficient substitution for attending schooling.
There is also the concern of the separation of the Children from their youngest sibling JA.
The Respondent father submits that since the Children have been in his care they have told him of conduct by the Applicant mother and the maternal grandmother that has caused him concern and led him to file a Notice of child abuse or risk of child abuse.
There is nothing in the allegations in my mind that is so sufficiently serious that one could draw that there is an immediate endangerment to the Children being in the care of the Applicant mother and it raises issues that will otherwise be determined at final hearing.
Findings
I have had regard to the principles espoused in Cowling, that any interlocutory Order should promote stability for the Children pending final hearing.
In the circumstances, I find that the relevant status quo was that prior to 22 October 2004 when the Children resided with the Applicant mother. I am not satisfied that there are any strong or overriding indications relevant to the Children's welfare that would have justified the Respondent father's collection of the Children without notice, prior arrangement nor discussion with the Applicant mother on 22 October 2004. The Applicant mother sought to institute her proceedings immediately upon the conduct of the Respondent father in removing the Children from her care.
Having regard to all the evidence placed before me and the submissions of both parties, I am satisfied that the best interests of the Children are served in the Children being returned forthwith to the Applicant mother.
I note that the Applicant mother proffers an undertaking to the Court that she will not use physical discipline in respect to the Children in order to meet the allegation of the Respondent father contained in the Notice of child abuse or risk of child abuse.
I also have regard to the submission of the Applicant mother of her recognition of the importance for the Children to have contact with their father as is indeed their right.
In the circumstances, I am satisfied that it is appropriate to make the Orders sought by the Applicant mother.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Riddle
Date: 10 December 2004
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