IVEY & ALLPORT

[2014] FCCA 1887

FEDERAL CIRCUIT COURT OF AUSTRALIA

IVEY & ALLPORT [2014] FCCA 1887

Catchwords:
FAMILY LAW – Children – parenting orders – application for parenting orders – best interests of the children – parental responsibility – equal shared parental responsibility.

PRACTICE AND PROCEDURE – Venue – application for change of venue to Brisbane Registry.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 61DA, 61DB, 65DAA, 68L

Federal Circuit Court Rules 2001, r.8.01

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS IVEY

Respondent: MR ALLPORT

File Number: SYC 2129 of 2014

Judgment of: Judge Scarlett

Hearing date: 19 August 2014

Date of Last Submission: 19 August 2014

Delivered at: Sydney

Delivered on: 19 August 2014

REPRESENTATION

Solicitor for the Applicant: Mr Cohen

Solicitors for the Applicant: David H. Cohen & Co

Counsel for the Respondent: Ms Black

Solicitors for the Respondent: Cooper Grace Ward Lawyers

ORDERS

1. The proceeding is transferred to the Brisbane Registry of the Court and is to be listed for mention before Judge Jarrett on 9 October 2014 at 9:30 am.

2. An interpreter in the (omitted) language is required for the assistance of the Respondent Father on the next occasion.

3. The interests of the children X born (omitted) 2005 and Y born (omitted) 2009 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid Queensland is requested to arrange this representation.

4. Within fourteen (14) days of the date of this Order the parties must forward to Legal Aid Queensland for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

5. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

6. The Applicant Mother is to return the children X and Y to the care of the Respondent Father within fourteen (14) days.

7. The children X and Y are to live with the Respondent Father until further Order.

8. The parties are to have equal shared parental responsibility for the children X and Y until further Order.

9. UNTIL FURTHER ORDER the Applicant Mother is to spend time with the children X and Y for half of each of the Queensland school holidays and such other times as the parties shall agree. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2129 of 2014

MS IVEY

Applicant

And

MR ALLPORT

Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant in these proceedings is the mother, the two children, X who was born on (omitted) 2005, and Y who was born on (omitted) 2009.  She is seeking parenting orders which would leave the children living with her in Sydney.  The Father, who lives in Brisbane, wishes the children to be returned to his care. 

2. There is a significant dispute between the parties as to the venue of these proceedings.  Should the venue be Sydney where this application was commenced or Brisbane where the Father attempted to commence proceedings but was beaten to the punch because the Mother had commenced filing an application a few days earlier? 

3. The circumstances of this case are somewhat unusual in that there are no parenting orders in force but it appears the children have been living with the Father, either by default or acquiescence, since the middle of 2010.  The Mother has spent some time with them and, in January of this year, arrangements were made that the children spend time with their mother in Sydney.  The Father was to collect the children and return them to Brisbane.  During the time that the children were living in Sydney, the Mother formed the view that there were significant problems relating to the children particularly behavioural problems and formed the view that the problems relating to the children not being or had not been adequately addressed by the Father.  

4. To that extent, the Father called to collect the children on 4^th February this year.  The Mother refused to make them available.  There was an altercation of sorts which involved the intervention of police and there is an application for an apprehended domestic violence order which is being defended by the Father.

5. The Court has been told that the application is part heard and will resume at the Downing Centre, on Friday 29^th August 2014.  What has happened is that when the proceedings came before the Court, an order was made that the parties should attend a Child Dispute Conference with a family consultant.  That took place yesterday afternoon. 

6. The Court now has a copy of the Child Dispute Conference memorandum and copies have been made available to the parties’ lawyers.  The family consultant in her memorandum identified a number of family safety factors including a current interim apprehended violence order against the Father, naming the Mother as the protected person. 

7. The Mother alleged a history of physical and verbal abuse by the Father and claims to be fearful of him.  She says that the older child, X, had witnessed this violence. 

8. The Father, for his part, claims that the allegations of family violence have been fabricated, that the Mother has previously been verbally abusive to him and also to his current wife.  There are allegations by the Mother that the Father uses alcohol to excess and allegations by the Father that the Mother has used illicit drugs. The Mother acknowledges some recreational use of ecstasy but denies any problematic substance misuse.  The family consultant expressed the view that there has been previous involvement by the Child Protection Services. 

9. The Father claims the Mother suffers from mental health concerns including attempts on her own life and threats to self-harm. The Mother believes the Father has physically disciplined the children and expressed concern that the children have exhibited sexualised behaviour.  The Father claims that the Mother, until recently, has never sought to have the children in her care.  Certainly, the Mother has been taking the children to a variety of health professionals.  She has enrolled the children in schools and she claims that the children are settled in her care and want to live with her.  The Father says that he has been the children’s primary caregiver until that was ended by the unilateral action of the Mother. 

10. The family consultant has identified a number of sources of information to assist the court in establishing the risk to the children including school and preschool records, medical counselling, police and child protection records, both in Sydney and in Brisbane.  Not surprisingly in the circumstances, the family consultant has recommended the appointment of an Independent Children's Lawyer and has stated that an interim judicial decision is likely to be required. 

11. This is clearly a case where the interests of the children should be independently represented by a lawyer.  I did not make such an order on the last occasion because the question of the venue of these proceedings remained a live issue. Obviously, it would be inappropriate for the Court to make an order that the children’s interests should be independently represented by a lawyer and request Legal Aid New South Wales to arrange this representation if the proceedings were to be transferred to Queensland. 

12. The question of venue is very much an issue that needs to be decided before anything further but there are other matters that need to follow from that.  I have had the benefit of hearing submissions from Mr Cohen, solicitor for the Mother, and Ms Black of counsel for the Father. 

13. In respect of transfer of proceedings to another registry of the Court, I have had recourse to the provisions of rule 8.01 which sets out in sub-rule (2) the matters to which the Court must have regard including the convenience of the parties, the limiting of expense and the cost of the proceeding, whether the matter has been listed for a final hearing and any other relevant matter. 

14. Well, clearly the matter has not been listed for final hearing.  We are a long way from this step.  The convenience of the parties would appear to me to be approximately equal.  It may well be said that there is an equal inconvenience depending on whether Brisbane or Sydney should be the venue. 

15. The Mother is currently in receipt of legal aid from Legal Aid New South Wales.  The Father has a limited grant of legal aid which I am informed by his counsel covers today only.  Indeed, the limitations of the Father’s grant of aid are such that Ms Black of counsel informed the court that she had to pay her own airfares to and from Sydney for the purpose of her appearance which is, of course, very much to her credit. 

16. The Father is not in a position to be making regular visits to Sydney.  There is no evidence before me that the Mother’s financial circumstances are such that she can travel regularly to Brisbane.  Either way, one party or the other is going to suffer inconvenience and a testing time financially.  The Court must also consider the availability of courts and judges to hear the application.  Whilst the Sydney registry is an extremely busy registry with lengthy delays for final hearings can be allocated, the situation is hardly much better in Brisbane. 

17. Certainly, I am of the view that my learned colleagues in Brisbane are working under a considerable degree of pressure as is the case, I think, in several other capital cities.  As to the availability of an Independent Children's Lawyer which is a matter of some urgency, on my understanding of the situation in Sydney and from submissions by the Father’s counsel, the amount of time it would take the appropriate legal aid authority to appoint a suitably qualified and for that lawyer to be able to appear is about the same whether in Sydney or Brisbane. 

18. It is a matter of concern that the Father has not seen the children since 4^th February 2014 when he attempted to collect them from the Mother.  I am informed by Mr Cohen for the Mother that the Father did have the opportunity to speak to the children by telephone on an occasion in late July but that, to my view, is a relatively poor substitute for these children spending time with their father. It is of significance that from 2010 until January of this year, the children were living with the Father.  They are both young children. 

19. The question of venue, whilst it is an important preliminary point, cannot be considered in a vacuum.  Where are the children to go in the meantime?  What are to be the arrangements?  Where will the children live whilst this matter is being considered?  This does involve a consideration of the best interests of the children because it will involve parenting orders, interim orders though they be and there is no evidence before the Court that would allow me to make any final orders nor would any of my colleagues be in a similar position. 

20. The Court must have regard to the principles and the objects of the Family Law Act 1975 (Cth) in respect of children, as set out in section 60B of the Act. The Court must regard the best interests of the children as the paramount consideration, as is set out in section 60CA. The Court considers the matters in subsections (2) and (3) of section 60CC of the Act in order to help it determine what the best interests of children are.

21. The Court must consider the question of parental responsibility.  We are reminded by the decision of the Full Court of the Family Court in Goode & Goode[1] that it is incumbent upon the court at any time when considering applications for parenting orders to turn its mind to the question of parental responsibility.  Normally, in interim proceedings, equal shared parental responsibility would be appropriate but sometimes it may not be appropriate. 

    [1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

22. Certainly, too, in cases of abuse or family violence the principle of equal shared parental responsibility does not apply and it can be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests. If the Court does make an order in respect of equal shared parental responsibility, it must consider the matters under section 65DAA of the Act. First, under subsection (1) the Court must consider whether it is reasonably practicable and in the children’s best interests for children to spend equal time with each parent or, in the alternative (under subsection (2)), whether it is reasonably practicable and in the children’s best interests for the children to spend substantial and significant time with each parent.

23. All of these matters have been considered. In my view, equal time or even substantial and significant time is not reasonably practical in the circumstances where one parent lives in Brisbane and one parent lives in Sydney. These are interim proceedings and normally equal shared parental responsibility would be the situation. That does not mean that a court, on making final orders, would be bound by the allocation of parental responsibility made in an interim proceeding. Section 61DB of the Act makes it clear that the court must disregard the allocation of parental responsibility when making an interim order.

24. The Mother seeks sole parental responsibility.  The Father seeks equal shared parental responsibility, at least in certain respects.  I am not of the view that at this stage anything other than equal shared parental responsibility can be the appropriate order.  But it still gets back to where are these proceedings going to be heard and how are they going to take place? 

25. It is a matter of concern that for nearly four years, the children have been living with their father who has been their primary caregiver.  They came into the care of their mother by arrangement for a temporary period of time to spend time with her during the school holidays.  They have remained in her care because she has unilaterally decided to retain them, claiming that the Father’s care of the children is inadequate.  She did this on 8^th February this year.  She commenced proceedings in this Court in April of this year.  Certainly, whilst the children were living with their father prior to January of this year, the Mother did not commence any proceedings for the children to live with her. 

26. There can be circumstances where it becomes clear to a parent that the manner in which the children are being cared for by the other parent is so inadequate or so harmful, or so neglectful that the children must be removed from the care of that parent immediately.  I am not of the view that this is such a case.  It will not do for one party to “stack the deck” in respect of parenting proceedings by acting unilaterally and refusing to return the children to the care of the other party.  Notwithstanding all of the material in the Mother’s affidavit, I am not satisfied that there is anything there that dissuades the court that the children should not have been returned to their father by arrangement. 

27. If the Mother had such concerns, she should have commenced proceedings for the children to live with her or spend greater periods of time with her. The fact is that Brisbane has been the children’s home for the past few years and they have lived with the Father and his new wife. Clearly, for the time being that is where they must be. Clearly, too, the Brisbane registry of the court is the appropriate venue. Clearly, the interests of the children will best be served by their being independently represented by a lawyer under the provisions of section 68L of the Family Law Act and I propose to request Legal Aid Queensland to arrange such representation.

28. The children will be returned to the care of the Father.  Until further order, they will be living with their father.  They will spend time with their mother. The matter is not going to disappear into some bureaucratic labyrinth.  Arrangements have been made for this matter to be listed at 9:30am on 9^th October this year before Judge Jarrett.  9^th October 2014 is a Thursday. By that stage, there should be an Independent Children's Lawyer who will be able to provide the Court with assistance. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  22 August 2014