HAINES & TAMARO

[2018] FCCA 1057

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAINES & TAMARO [2018] FCCA 1057

Catchwords:
FAMILY LAW – Location and recovery orders – application made in duty list – respondent and lawyers situate in Sydney at time of hearing – difficulties in contacting respondent’s lawyers at time of hearing – procedural orders made and order that respondent attend court and present child at the court’s child minding service at Melbourne Registry of Federal Circuit Court.

Legislation:

Family Law Act 1975, ss.67ZBB, 68L

Applicant: MR HAINES

Respondent: MS TAMARO

File Number: MLC 2872 of 2018

Judgment of: Judge A Kelly

Hearing date: 26 March 2018

Date of Last Submission: 26 March 2018

Delivered at: Melbourne

Delivered on: 2 May 2018

REPRESENTATION

Counsel for the Applicant: Ms Brookes

Solicitors for the Applicant: Faram Ritchie Davies

Solicitor for the Respondent: Ms Fordham (via telephone)

Solicitors for the Respondent: Legal Aid NSW Sydney Central Family Law

THE COURT ORDERS, BY CONSENT, THAT:

1. The matter be adjourned for Mention on 19 April 2018 at 10.00am in the Federal Circuit Court of Australia at Melbourne.

2. Pursuant to s 68L(2) of the Family Law Act1975 (Cth) the child [X] born 2016 be independently represented AND IT IS REQUESTED that Victoria Legal Aid urgently arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make 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

   (

   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 Final Hearing.

AND THE COURT ORDERS THAT:

1. The Mother attend upon:

   (a)the child minding service, fifth floor, Melbourne Registry of the Federal Circuit Court, with the child [X] born 2016 at 9.00am on 19 April 2018 and make arrangements for the child's care with the service over the course of the day; and

   (b)the Court at 9.45am on Thursday 19 April 2018.

2. The Applicant Father shall file and serve a copy of his Application, Affidavit and Notice of Risk by 4.00pm on Tuesday 27 March 2018 by serving the same as an attachment to an email to Ms Fordham of Legal Aid New South Wales.

3. The Respondent Mother file a Notice of Address for Service with the Melbourne Registry of the Federal Circuit Court by 4.00pm Wednesday 28 March 2018, and serve sealed copies of the same upon the other parties as soon as practicable.

4. The Respondent Mother file with the Court and serve upon the parties a Response and such other Affidavit materials she seeks to rely upon by 4.00pm Thursday 12 April 2018.

5. A sealed copy of this Order shall be transmitted to the Family Law Branch of New South Wales Legal Aid and addressed to the attention of the Mother care of Hannah Fordham at [email protected].

AND THE COURT NOTES THAT:

A.If the Respondent Mother fails to comply with paragraph 1 of the Minute, the Court will consider an application for the arrest of the Mother.

B.If the Respondent Mother fails to comply with paragraph 3 of the Minute, the Court will consider an application to proceed with the matter on an undefended basis.

C.The Father’s Solicitor shall as soon as practicable serve upon the Mother via email to Ms Fordham copies of all documents filed with the Court on his behalf.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2872 of 2018

MR HAINES

Applicant

And

MS TAMARO

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant, Mr Haines aged 46 years, made an urgent application in the course of a duty list for location and recovery orders in respect of his infant daughter, [X], born 2016.

2. The respondent mother, Ms Tamaro, is aged 39 years.

3. The parties began a relationship in late 2014 which ceased in or around March 2017.  The parties never cohabited.

4. [X] is the only child of their relationship.

5. These reasons explain the orders that were made on 26 March 2018.

Procedural History

1. On 27 February 2018, the applicant filed an initiating application in the Magistrates’ Court of Victoria at Shepparton seeking parenting orders. On the same day, the applicant filed an affidavit in support of his application and a notice of risk.

2. On 6 March 2018, the matter was heard before Magistrate Mithen at Shepparton. Both parties were represented on that day. Orders were made transferring the proceeding to the Federal Circuit Court at Melbourne for hearing on an urgent basis. 

3. The order made on 6 March 2018 was made by consent.

4. On 16 March 2018, the applicant commenced this proceeding in the Federal Circuit Court.  By his application, a range of interim relief was sought including for the making of location and recovery orders.

5. In addition to his initiating application, the applicant filed an affidavit together with a notice of risk in accordance with sub-s 67Z(2) of the Family Law Act 1975 (Cth). By his notice, the applicant alleged that while the child had not been abused, she was at risk of such abuse by reason that the respondent drank to excess and had left the child unattended.

6. On 22 March 2018, the Department of Health and Human Services provided its s 67Z Response stating its intention not to intervene in the proceeding.  The department’s Response recorded the concern that had been expressed in February 2018 that the respondent drank to excess and that she had, on one occasion, left the child unattended. 

Evidence

1. On 27 February 2018, the applicant affirmed an affidavit which provided a history of the parties’ relationship.  The matters which follow are taken from that affidavit and were read as the untested evidence of the applicant during a hearing conducted in duty a list.

2. As stated above, the parties never cohabited, their relationship being of less than three years duration.  Their child is less than two years of age.

3. The applicant deposed that he had been very involved in the respondent’s pregnancy, attending birthing classes and almost all of her medical appointments and check-ups.  The applicant had been present at the child’s birth.  

4. It appeared that the respondent lived with her mother and that after the applicant finished work each day he would travel to the mother’s home to be with the respondent and their child.  He gave evidence of the care that he provided to the child and deposed that the child appeared to be attached to him.  He also gave evidence of having spent unsupervised time with the child from the time that she was aged about two to three months old. 

5. The applicant gave evidence as to his request of the respondent that they should move in together and of her refusal of such request including that he believed the respondent’s mother did not approve of him. 

6. The applicant deposed to an argument in which the parties became embroiled in March 2017 during which, he said, the respondent threatened to deny the applicant time with the child and that she had said she would name someone other than the applicant as the child’s father on the child’s birth certificate.  He admitted to threatening the respondent with a pair of scissors but denied an allegation which he deposed had been made by the respondent in a police statement to his having stabbed her in the head with those scissors.

7. As a consequence of the matters set out in the preceding paragraph, the applicant was placed:

   (a)in May 2017, on a 12 month intervention order;

   (b)in October 2017, on a 12 month Community Corrections order.

8. The child was not listed on the intervention order.

9. On 21 August 2017, the parties participated in a Legal Aid Family Dispute Resolution program as a result of which they reached agreement embodied in a parenting plan that was in evidence.

10. The parties’ agreed parenting plan was that the applicant would spend time with the child on such occasions (and for the duration) as directed by the Berry Street Contact Centre, (town omitted).  Other matters that were agreed included that the child should live with the respondent and for the Berry Street Contact Centre, (town omitted) to provide a report in relation to the time that the applicant spent with the child. 

11. The parties also agreed to undertake a post separation parenting program and that the applicant would undertake a men’s behaviour course and anger management course.  The applicant also agreed to continue to see his counsellor and to undertake random alcohol screens and abstain from alcohol consumption for 24 hours prior to having contact with the child.  Ancillary arrangements were also agreed as to means of communication and for a further Dispute Resolution conference to be held once the centre had provided an initial report.

12. The parties also agreed that the applicant could see the child on further occasions as was agreed by them in writing.

13. The applicant has had three contact visits with the child and said that those visits had gone well.  Although the contact times between the applicant and child initially went well, the applicant found that the respondent was increasingly late in delivering the child to the Contact Centre.  The applicant also deposed that the respondent refused a request that his mother also be permitted to attend the Contact Centre.

14. In consequence of the difficulties encountered in relation to contact time with the child, the applicant requested his solicitors to arrange a further Family Dispute Resolution conference.  At this point it emerged that Legal Aid was unable to make contact with the respondent. 

15. During an appointment arranged at the Berry Street Contact Centre, that centre was also unable to contact the respondent. 

16. The applicant ascertained that the property at which the applicant and her mother had lived is now vacant.

17. The applicant also adduced in evidence the reports available to this point evidencing the progress which he has made in the courses that he has undertaken to this point.  In addition, the applicant gave evidence of having raised children previously and deposed that he had good experience in raising children.

18. On 23 March 2018, the court received an email from the Family Law Branch of Legal Aid NSW explaining that assistance was being provided to the respondent and disclosed that the respondent was residing in Sydney.  A request was made to appear via telephone link. The Court acceded to that request.

19. When the matter was listed for directions on 26 March 2018 before me, the applicant appeared by his counsel.  When the matter was first called, an attempt was made to contact the respondent’s lawyer (using the telephone number provided) so as to facilitate the respondent’s participation in the hearing.  The first call was unsuccessful.  Counsel for the applicant was asked to make further attempts to contact the person at NSW Legal Aid having responsibility for the matter.  In the course of addressing the matter at that stage, I indicated the type of orders which may be under consideration.  The matter was stood down.

20. A second attempt to contact the respondent’s lawyer by telephone was also unsuccessful. 

21. A third attempt yielded success when the matter was finally able to be dealt with later in the afternoon.  At that time I discussed with Ms Brookes of counsel for the applicant and Ms Fordham, solicitor for the respondent each of the orders that seemed appropriate to be made on an interim basis.  Some of the orders so made were made by consent.

22. An order was made listing the matter for mention on 19 April 2018.  The order was necessary so as to afford the respondent an opportunity to prepare answering material and to allow for the further procedural steps detailed below and for the further case management of the matter.

23. An order was made for the appointment of an Independent Children’s Lawyer. Section 68L confers power on a Court to make an order for the appointment of an Independent Children’s Lawyer. The section, which is located in in Part VII, Divn 10 of the Act, applies where, as here, the child’s best interest are, or the child’s welfare is, the paramount or a relevant consideration: sub-s 68L(1). On the material available before me it appeared that such an order was appropriate.

24. A further order was made for the respondent to attend the child minding service in the Melbourne Registry of the Court when the matter was listed for mention. By s 67ZBB, the Court is required to consider what interim or procedural orders (if any) should be made and to make such orders as it considers appropriate to deal with the allegations made. It is required to deal with those issues so raised as expeditiously as possible: see para 67ZBB(2)(c), 67ZBB(3)(a). The making of that order was considered necessary and appropriate as an intermediate step towards consideration of the making of a location or recovery order. To underscore the seriousness with which the Court viewed compliance with this order, I raised with the parties’ counsel, and made a notation to the effect that a failure to comply with the order may result in consideration being given to an application for the arrest of the respondent. Like orders were made permitting application to be made for the matter to proceed on an undefended basis.

25. Further orders were made, by consent, regulating the filing of material by the respondent and for the service of the order upon the Family Law Branch of Legal Aid NSW together with further copies of all documents that had been filed in this proceeding.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 2 May 2018