Jeffreys and Benson
[2017] FCCA 1138
•30 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFREYS & BENSON | [2017] FCCA 1138 |
| Catchwords: FAMILY LAW – Parenting – recovery order. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: Goode & Goode (2006) FLC 93-286 M & M (1988) 166 CLR 69 Morgan & Miles [2007] FamCA 1230 |
| Applicant: | MR JEFFREYS |
| Respondent: | MS BENSON |
| File Number: | MLC 11343 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 18 May 2017 |
| Date of Last Submission: | 18 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Goddard |
| Solicitors for the Applicant: | Higgins Legal |
| Counsel for the Respondent: | Ms B. Lane |
| Solicitors for the Respondent: | KHQ Lawyers |
ORDERS
Until further order the children X born (omitted) 2013 and Y born (omitted) 2015 (“the children”) live with the mother.
The mother return with the children to live in metropolitan Melbourne within four weeks of the date of this order.
The mother advise the solicitors for the father of her proposed residential address in Melbourne within three weeks of the date of this order.
In the event the mother does not return with the children to Melbourne pursuant to order 2 herein, the father has liberty to apply to Chambers for the issue of a formal recovery order.
Until further order the children spend time with the father as follows –
(a)Until the mother and the children return to Melbourne –
(i)commencing the weekend of 3–4 June 2017, from 9.00a.m. until 5.00 p.m. Saturday and from 9.00 a.m. until 5.00 p.m. Sunday and each alternate weekend thereafter, with such time to take place in Melbourne; and
(ii)commencing the weekend of 10–11 June 2017, from 9.00a.m. until 5.00 p.m. Saturday and from 9.00 a.m. until 5.00 p.m. Sunday and each alternate weekend thereafter, with such time to take place in Adelaide.
(b)Upon the return of the children to Melbourne –
(i)in the first week of every two-week cycle, from 9.00 a.m. until 5.00 p.m. Thursday and from 9.00 a.m. until 5.00 p.m. the following Friday;
(ii)in the second week of every two-week cycle, from 9.00 a.m. until 5.00 p.m. Saturday and from 9.00 a.m. until 5.00 p.m. the following Sunday;
(iii)on Father’s Day from 9.00 a.m. until 5.00 p.m.; and
(iv)on each of the children’s birthdays from 9.00a.m until 2.00p.m.
(c)As otherwise may be agreed between the parties in writing.
Changeover take place at Hungry Jacks in (omitted) in Adelaide while the children are living in Adelaide and at (omitted) McDonalds when the children return to Melbourne.
Each party is restrained from abusing, denigrating or belittling the other parent in the presence or hearing of the child or children.
Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:
(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 solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon; and
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the Final Hearing.
The matter remains listed for final hearing on 16 October 2017 at 10.00a.m. with an estimated hearing time of three (3) days.
IT IS NOTED that publication of this judgment under the pseudonym Jeffreys & Benson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11343 of 2016
| MR JEFFREYS |
Applicant
And
| MS BENSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This application raised the fascinating, yet scarcely novel, issue of whether a recovery order should be made in circumstances where, following separation –
a)the mother Ms Benson (“the mother”) and the children X born (omitted) 2013 and Y born (omitted) 2015 (“the children”) travelled interstate on a holiday, the mother having equal shared parental responsibility with the father Mr Jeffreys (“the father”) for the children;
b)the mother and the children did not return to Victoria from South Australia;
c)the mother resisted the making of a recovery order by reason of her own and her children’s physical and mental health; and
d)none of the evidence has been tested.
The trial of this proceeding is fixed for 16, 17 and 18 October 2017.
A recovery order, if made, may produce a result that an interlocutory order is made yet at the trial of this proceeding a different relocation order is made.
Synopsis
For the reasons that follow, I order the mother to return to Melbourne with the children and otherwise make orders in accordance with the father’s proposal.
In the event that the mother does not return to Melbourne with the children as ordered, I grant the father liberty to apply to my Chambers for the issuing of a formal recovery order.
A short factual narrative
At the date of the hearing of this application, the father was 46 years of age and the mother was 44.
After meeting, it was common ground that in (omitted) 2012 the father moved into the mother’s home at (omitted) of which she was the sole registered proprietor.
The relationship between the mother and father to that point was tolerably civil. However, Ms Lane of counsel who appeared for the mother contended that the relationship was punctuated by a simmering atmosphere of antagonism and angst, essentially from commencement until March 2015 when the mother and father separated.
The parents have two daughters. As is evident from the narration so far, Y was born after the mother and father had separated.
In July 2016 the mother visited Adelaide where she has family. In August 2016 the father travelled to Adelaide to spend time with his children. The mother and children have remained in Adelaide since then. Ms Lane told me the children are in childcare in Adelaide and the mother has commenced employment there. Ms Lane also pointed out that Y has at no stage lived with the father as she was born after the parents separated. Mr Goddard of counsel for the father contended that since August 2016 the father has had next to no time with the children. Mr Goddard also pointed to the fact that the mother failed to comply with my order made on 8 February 2017 that gave time to the father in Mildura on 14 and 15 March 2017.
Chronologically – dare I say logically also – one of the first issues related to how and why the mother went to Adelaide from which she has not returned. After all, both parents enjoy equal shared parental responsibility for the children. By definition, equal shared parental responsibility also involves cooperation in reaching decisions that have a significant impact on the lives of the children, including where the children will live.
The evidence on that issue was disputed. On the father’s version of events, following separation the mother sought assistance from an organisation called Women’s Health West (“Women’s Health West”). The father asserted the mother obtained legal advice from WHW. He also asserted that on 10 September 2015 the mother reported to a caseworker counsellor that she (the mother) had consulted a solicitor who stated that the father would have a very strong case to order the mother to return the Melbourne if the mother left for Adelaide (inferentially, permanently).
Mr Goddard referred to the period of leave taken by the father after the birth of Y, notwithstanding the separation of the parents. Mr Goddard also referred to a conversation between the mother and a counsellor with WHW, the substance of which was that the mother intended to move to Adelaide of which her partner was unaware, that the mother wanted to keep it a secret and that the mother had sought legal advice.
The father highlighted that against that factual backdrop the mother “purportedly” (his word) went on holidays to Adelaide and did not return. Mr Goddard placed a complexion on the lead up to the holiday in Adelaide that had sinister overtones, insinuating that the trip was calculated, the true purpose of which (permanent relocation to Adelaide) was being concealed from the father.
Conversely, on behalf the mother Ms Lane contended that the trip to Adelaide was innocent and that it had the father’s imprimatur. Ms Lane contended that when in Adelaide, the mother decided to stay by reason of the fact that her extended family lived in Adelaide, she had support there, she had sold her home in (omitted) and, most importantly, when in Adelaide the mother became so overwhelmed by psychological consequences (so she said) of the father’s violence that she developed post-traumatic stress disorder and other afflictions.
Insofar as episodes of violence in this case were concerned, it was common ground that very significant disputes surround those incidents and that the competing versions can only be resolved at trial. Equally, although this was not necessarily common ground, the mother’s psychological issues allegedly referable to her relationship with the father must be determined at trial as well.
For the purposes of this interim application, it is not possible for me to determine, and for that matter it is not necessary for me to determine whether –
a)the mother took the children to Adelaide with the father’s knowledge and consent;
b)the mother fled to Adelaide allegedly on account of incidents of domestic violence;
c)the mother arrived in Adelaide with the children having the father’s agreement to do so;
d)that agreement was revoked while the mother and children were in Adelaide; and
e)the mother needed the father’s actual or implied permission to go to Adelaide with the children in the first place.
Several important matters emerged on the uncontested material even at this stage. Those included –
a)the mother remains in Adelaide with the children and does not wish to return to Melbourne with the children;
b)the mother did not comply with paragraph 2(e) of my orders made on 8 February 2017; and
c)the father’s time with children is severely reduced.
At the trial of this proceeding the many matters to be determined include whether the mother should be permitted to permanently relocate with the children to Adelaide.
Allegations and evidence of violence
Ms Lane relied on the evidence in an affidavit of Mr K made 3 May 2017, a police sergeant, in support of the mother’s contentions that the domestic relationship between the mother and father was a violent relationship. Having carefully read that material, it seemed the sergeant deposed to some fairly confined facts, namely –
a)the mother disclosed to him her version of the events recorded in paragraph 9 of Sgt K’s affidavit (those being the events of violence on which the mother relied in this case);
b)Sgt K considered those matters to constitute “a high risk of family violence”;[1]
c)Sgt K received a telephone call on a date he did not specify from the father during which he discussed the mother’s allegations (I infer, of family violence); and
d)Sgt K said the father made certain admissions to him during the telephone call.
[1] Paragraph 11 of the affidavit of Mr K made 3 May 2017.
Ms Lane catalogued the allegations of family violence to be fivefold. They were assertions that the father –
a)was controlling of the mother;
b)frequently yelled at the mother;
c)had threatened to hurt the mother;
d)had damaged the wall of their home during an argument; and
e)had kicked the mother in the stomach during an argument.
Ms Lane invited me to place particular emphasis on the father’s admissions about damaging the wall and pushing the mother away from their bed with his foot during an argument. It is noteworthy that Sgt K said the mother told him the event involved “kicking” the mother in the stomach whereas Sgt K said the father admitted to “pushing” her. The difference may be inconsequential as both involved the use of force.
The High Court said in M & M[2] that a judge in my shoes, when dealing with allegations of family violence, does not assess the matter as might a court when deciding the culpability of a person according to the standards of proof relevant in a criminal case. Instead, this court has regard to the best interests of the child. I have approached this case with that instruction in mind, recognising that on the hearing of this interim application for a recovery order, the allegations of family violence are untested and need to be determined at trial.
[2] (1988) 166 CLR 69.
Allegations of violence against having a meaningful relationship
Mr Goddard quite properly pointed out that the father is currently being denied time with his children and in the process, the children are being denied the opportunity of having a meaningful relationship with the father. Mr Goddard submitted that the family consultant was of the view that the father and the children enjoy a very favourable relationship, that he (as well as the mother, it must be said) loves the children and cherishes them and that the father has a high degree of familiarity with his daughters.
Nothing in the material suggested that if anger issues with the father were put in check, the father and the children could not have a positive and close relationship.
One of the critical tasks for me in this application is divining a way forward for the children, recognising a trial date in October has been fixed. Past acts will be the subject of close examination at trial.
To my mind, the evidence revealed that tension between the mother and the father had lessened since separation. The mother asserted an ongoing fear of the father. She relied on an intervention order made in South Australia in October 2016.
It is not necessary for me to make findings of fact in relation to violence and, for that matter, I am unable to do so on the hearing of this interlocutory dispute where witnesses do not give vive voce evidence in the witness box. Nevertheless, I must take into account evidence of family violence for the purposes of s.60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) insofar as that evidence has a bearing on the importance of the children having a meaningful relationship with the father for the purposes of s.60CC(2)(a) of the Act. The Act requires me to subordinate matters in relation to the children having a meaningful relationship with one parent in the face of evidence concerning family violence.
Mr Goddard pointed out that the allegations of family violence relevant to the children –
a)consisted of verbal abuse of the mother in the presence of the children; and
b)each incident was hotly disputed at a factual level.
Of course, the mere fact that a party makes an allegation of family violence in an affidavit does not prove the truth of the allegation. The truth of the allegation must be proved according to the relevant standard at trial. But by the same token, under the Act I am required to act protectively in the best interests of the children. Of necessity, that may require me to reach a view, even on the evidence in its present imperfect state.
Assessing the competing proposals
In a nutshell, Ms Lane submitted that very good reason existed for refusing the application for recovery brought by the father. Among those were –
a)the mother lives in her own home in Adelaide at no cost;
b)conversely, if the recovery order were to be made, the mother would be forced to find then pay for short-term rental accommodation;
c)the mother is in work in Adelaide;
d)the children enjoy a stable routine while living with the mother in Adelaide; and
e)the children are in childcare in Adelaide.
Mr Goddard addressed matters of reasonable practicality. He conceded that a recovery order would inflict expense and difficulty on the mother. That much is readily apparent. But this case must be examined from the perspective of the children. I accept that the children are very young and do not have a fully formed social network. To that end, it does not seem to me that a recovery order will orchestrate such hardship to them that I should refuse to make it on that ground alone.
Ms Lane contended that the mother while in Adelaide has support from her family. She also said the mother must be physically present for work on Tuesday of each week for the purposes of (duties omitted). If she is ordered to move back to Melbourne, Ms Lane said the mother must find work and accommodation in Melbourne. To that I add the children must find new childcare arrangements.
Curiously the mother maintained her position that she sought equal shared parental responsibility rather than sole parental responsibility. That seemed to me to be an inconsistent position when she so trenchantly submitted that she, absent a recovery order, will stay in Adelaide with the children.
Facts on which I proceed
Let me state the facts on which I am willing to proceed on this interlocutory application. They include –
a)the mother travelled to Adelaide with the children in July 2016 on a holiday;
b)the mother and children have not returned from Adelaide;
c)on a date between the date on which she arrived in Adelaide in July 2016 and the date on which this proceeding was commenced in November 2016, the mother decided to remain in Adelaide with the children and to not return to Melbourne;
d)an intervention order currently operates in South Australia to restrict the father’s contact with the mother in South Australia;
e)this case is fixed for trial in October 2017;
f)the mother failed to comply with orders I made in February 2017;
g)the parents currently operate under the equal shared parental responsibility regime provided for in the Act;
h)the father’s time with the children has been minimal since the mother took the children to Adelaide; and
i)the mother has no present intention, absent court order, to return to Melbourne with the children.
Both counsel took me to the observations of the full court in Goode & Goode.[3] Mr Goddard relied on the decision of Boland J in Morgan & Miles.[4] Both decisions emphasise the importance of the best interests of the children when determining a relocation case and, to my way of thinking, the same considerations apply in a recovery application.
[3] (2006) FLC 93-286.
[4] [2007] FamCA 1230.
Balancing the scales
It seems to me the report of the family consultant[5] told a compelling version of events that both parents have a loving, supportive and nurturing relationship with each child.
[5] Family Assessment Report prepared by Ms D dated 20 March 2017.
It also seemed to me that an order for the children to return to Melbourne will orchestrate hardship to the mother yet any hardship to the children will be minimal. They will need a new childcare arrangement and they will not see or interact with the mother’s extended family in Adelaide. That is to be contrasted with the enhancement to their lives they will derive from frequent interaction with the father in Melbourne between the date of this order and the date of the trial.
Matters of violence must be determined at trial. I am unable to reach a concluded view at the present time about family violence except to say–
a)the allegations of violence referable to the children are derivative, that is to say, any harm is of an emotional nature caused by stress suffered by the mother who somehow translates that to the children in a manner not articulated in the affidavit material filed in support of this application;
b)the mother and father no longer interact; and
c)the only acts of physical violence alleged related to a dish thrown in October 2014 and the pushing of the mother in bed.
Issues relevant to the mother such as the need to find temporary accommodation does not involve a consideration of “family violence” as defined. At one level that was the consequence of the mother’s move to Adelaide.
Then there was the issue of the mother’s failure to comply with my orders made in February 2017.
I am concerned that the mother is or may be engaging in steps to altogether cut the children from contact with the father and that she is using unsubstantiated assertions of family violence to better effect her plan.
This case will be heard very shortly. Whatever dissatisfaction the mother may feel from these orders will be short-lived.
The mother’s refusal to return from Adelaide was not a joint decision. The mother seems to have unilaterally chosen to remain in Adelaide. That is not what equal shared parental responsibility entails. By making that move and not returning to Melbourne the mother is denying her children interaction with their father in accordance with previous orders. That is not in their best interest. I am not persuaded that evidence of family violence disturbs the ordinary consequences of orders for equal shared parental responsibility.
The mother and children must return to Melbourne from Adelaide.
I make orders in accordance with the father’s proposed minute.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 30 May 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Remedies
-
Procedural Fairness
-
Jurisdiction
0