JOSA & BEYER

[2019] FCCA 2607

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSA & BEYER [2019] FCCA 2607

Catchwords:
FAMILY LAW – Urgent interim parenting – mother and child unilaterally relocated – allegations of family violence – where child should live – best interests.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR JOSA

Respondent: MS BEYER

File Number: PAC 2794 of 2019

Judgment of: Judge Obradovic

Hearing date: 28 August 2019

Date of Last Submission: 28 August 2019

Delivered at: Parramatta

Delivered on: 28 August 2019

REPRESENTATION

Appearing for the Applicant: Ms Jennings

Solicitors for the Applicant: Mason Mia & Associates

Appearing for the Respondent: Ms Mansour

Solicitors for the Respondent: Ark Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The child X born … 2016 shall live with the mother.

2. The child shall spend time with the father on one weekend each month, unless otherwise agreed being the last weekend in each month to commence on Friday 30 August 2019 at times to be agreed between the parties.

3. The parties are to equally share the cost of the child’s travel between Adelaide and Town B.

4. The child shall spend time with the father for five consecutive days during the September/October school holidays in 2019 and for two block periods of five days during the Christmas school holidays at the end of the 2019 school year at times as agreed between the parties.

THE COURT FURTHER ORDERS THAT:

1. The proceedings are transferred to the Adelaide Registry of the Federal Circuit Court of Australia to be listed at 10am on 28 October 2019 before Judge Young.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2794 of 2019

MR JOSA

Applicant

And

MS BEYER

Respondent

REASONS FOR JUDGMENT

1. Today is the first return date of the father’s initiating application, which the father filed in the Parramatta registry of the Federal Circuit Court on 17 June 2019.  That application contained an application by the father for the initiating application to be served at short notice, and, ultimately, the application for short notice was determined by Registrar Murdoch on 17 June 2019.  Registrar Murdoch made orders for the service of the initiating application, affidavit and notice of risk upon the mother to be effected by 4 pm on 24 June 2019, but Registrar Murdoch refused the application for the matter to be listed at short notice.  The registrar made an order for the matter to be listed at the next available listing in the Federal Circuit Court.

2. The matter was ultimately listed in my docket with the first return date being 9.30am on 28 August 2019.  The father did not make any application to review the Registrar’s decision in respect of the determination not to list his application at short notice.  In any event, except for a period of time which has lapsed, it is the Court’s view that the father’s case has not been prejudiced by the matter first being listed on 28 August 2019, because it has given the mother the opportunity of responding to the case by filing her documents.  The mother was served with the father’s initiating application and associated documents, only partly in accordance with the Court’s orders, that is, the documents were served upon Thexton Lawyers by 4pm on 24 June 2019.  The mother was also served in accordance with the orders of the Court by email on 21 June 2019.

3. The mother has not explained why she has not filed her documents in accordance with the Court Rules, that is, 28 days after service of those documents. The documents were served very late, that is, they were served on the eve of the first return date. The solicitor for the father did not take any formal objection with the mother being able to rely on those documents, and the Court considers that it is appropriate that she be granted leave to rely on those documents in respect of the interim orders that are sought by each of the parties. The father’s affidavit, which must have been done at short notice, contains limited information in respect of the parties’ living circumstances prior to separation, in respect of his care of the child prior to separation, and in respect of most of the matters which the Court needs to consider when it turns its mind to section 60CC of the Family Law Act1975.  This is not a criticism of the father.  It is simply a statement of the evidence as it currently stands before the Court.

4. The father was asked through his solicitor a number of times today whether he still wanted to press on with his application, and after instructions were obtained, the father pressed the Court for orders contained in his application in accordance with paragraphs 3, 4, 5, 6, 7, 9 and 10 of the interim orders sought of the initiating application filed on 17 June 2019.  The mother’s affidavit, which was filed on 27 August 2019 – albeit it bears a seal at 7.40pm on 27 August 2019, for the purposes of the Rules, the date of filing is the next business day – provides detailed evidence as to the parties’ relationship, parenting and care of the child, the reasons for her relocating, and her current circumstances.

5. According to the father, the parties separated in early June 2019, but according to the mother, separation occurred before that, although it is unclear when the mother says the parties separated.  In this regard, I refer to paragraph 16 of the mother’s affidavit, where she says that:

   Mr Josa was always fully aware that I was on the single parent pension and government payment, as he assisted me with filling out some parts of the ‘Separate Under One Roof’ form.

6. The mother says that the parties had ongoing relationship issues between December 2019 to 3 June 2019.  In paragraph 14 of the father’s affidavit, he says, “Approximately three weeks ago”, the mother said to him words to the effect that, “Our relationship is over.  I want to go away”.  But then the father goes on to say that the mother had said to him, “I have been getting the single parent pension for months” and that she had told Centrelink that they were separated but living under the one roof.  It would appear from this evidence in the father’s case, that it was months before June 2019 that such an event occurred, that is, that the mother had told Centrelink that the parties were separated, but living under the one roof.  In any event, the date of separation is not critical for the purposes of the current application.  What is certainly not in dispute is that the mother, together with the child, left the home where the parties had lived on or about 3 June 2019.

7. The mother, in her affidavit, says that she was subjected to coercive and controlling behaviour and also instances of physical violence.  The mother outlines these matters as follows.  She says that during the parties relationship, the father punched a hole in the bedroom wall after he had cornered her during an argument; that he had thrown a chair at the kitchen door and put a hole in the door after trashing the house because he had lost his temper; that he had tried to drag the child X through the bedroom window during one of the parties’ last arguments, which occurred on or about 2 June 2019, which the mother sets out in detail in her affidavit.  The mother also asserts that the father tried to isolate her, that he turned the mother’s friends against her and did not allow her to talk to her family, as he monitored her phone and any calls or messages that were made; that he used aggressive language; and that he was angry when she asked him for help with X’s night feeds and settling.  The mother deposes that the father would always get angry and enraged, even for the smallest issues that did not require such a level of anger.

8. The mother deposes to an instance on a day when he got angry when he was trying to make a birthday cake for his child, C.  The mother says that he got so angry because the birthday cake had stuck to the tin that he picked the whole thing up and threw it at the wall, and then he stormed out of the house and left the mother to clean it up.  The mother gives evidence that the father would always try to make a scene whenever she decided to purchase an item that he did not approve of.  Concerningly, the mother says that the father set up CCTV inside the house and that he insisted that it be turned on while the mother was at home so that he could watch what she was doing while he was away from the home.  The mother gives an instance when the father, during an intimate episode, whilst she was tied onto the bed consensually, then proceeded to take some photos of the mother, which she did not consent to.  And the mother also gives an account of when the father was angry at the child, X, when she accidentally hit him with a toy car.

9. The father, in his affidavit, which was filed prior to the mother’s evidence, simply says, at paragraph 29:

   There are no issues of domestic violence in this matter.  There is no risk of alcohol and substance use in this matter.

10. The father, even though the affidavit was prepared on or about 14 June, does not give any evidence in respect of the incident which the mother says occurred on 2 June 2019, and that may be for a number of reasons, including that such an incident never occurred.  Certainly, according to the mother, the police were called and attended the parties’ home and spoke to both of the parents.  This is not something that is mentioned in the father’s affidavit.  This is the instance when mum says that after the police left, that the father was following her around the house and would not stop attempting to argue with her, that she then went into the bedroom with X and locked the door.  The father then, according to the mother, opened the bedroom window, removed the flyscreen and tried to pull X out of the window.  There then seems to have been a tug-of-war with the child as between the parents.

11. These matters, as I’ve indicated, are not addressed in the father’s affidavit, and it may well be that because the father will say that this incident never occurred.  The father says that he overheard the mother speaking to somebody about having spoken to a lawyer on 3 June, and it was at that point that the father thought that he should obtain his own legal advice, and he then sought to obtain that advice.  He says when he returned to the house that the mother and the child were no longer there.  The parents agree that the mother and the child went to A Refuge, which was a refuge in Town B.  What the father does not say in his affidavit is what occurred after the mother went to the refuge at A Refuge in Town B, and by that I mean there is no evidence about an incident that the mother says occurred at A Refuge in Town B. Once again, this may be because such an incident never occurred.

12. But according to the mother, the father turned up at A Refuge.  She believes that he tracked her location using her iPhone and that when he arrived, he grabbed X off the mother and started yelling and that a worker then stepped in, removed the child from the father until things had calmed down, and ultimately returned the child to her.  The police were called and they removed the father from the scene.  Even though the affidavit of the father, as I have indicated earlier, was sworn on 14 June 2019, his affidavit is absolutely silent about any events which might have occurred at A Refuge where the police became involved.  These are important matters for the Court to know about, and if they did occur and if the police were involved in the matter, which the mother suggests, the Court would have expected the father to address those matters in his evidence and certainly to tell the Court about the involvement of the police at or around the time of separation.

13. There are very few agreed facts between the parties.  They, for example, agree as to their respective ages.  They agree about the date of physical separation.  They agree that they were together for a period of about four years. They agree that the mother was at all times the child’s primary carer, and they agree that the mother had limited contact with her family while the parties were together, although they do not agree as to the reasons why this was so.  Despite these agreed facts and, importantly, despite the father’s evidence that the mother was the child’s primary carer and, inferentially, possibly, the child’s primary attachment, a child who is not yet three years of age, the father seeks an order for the child to be returned to the Town B area within three days and that the child live with the father and that the child spend time with the mother as agreed between the parties.  The father does not even put a proposal as to what might be appropriate time such that a child who has been in her mother’s primary care is afforded a relationship which is meaningful with her mother.

14. The father, according to his material, works full time from Monday to Friday.  He is a tradesman by occupation.  The father does not say what his hours of work are, but presumably they are at least 38 hours per week, in accordance with the National Employment Standards.  The father says that he never works on weekends.  The father was also granted leave to lead some oral evidence today in support of the urgent orders that he sought, in particular, in respect of how he proposed to assist the mother financially, if at all, so that the move which he asked the Court to order could occur.  The father’s evidence is that he can afford approximately $70 per week to assist the mother in any costs of living that might be associated with her return to the Town B area.  That amounts to about $280 to $300 per month, given that there is 4.3 weeks every month.

15. The father, in his affidavit, does not set out how he proposes to care for the parties’ two years and 10 month old child whilst working full time.  There is no evidence in his affidavit of any available child care, whether his work is supportive of him having any flexible time arrangements, what family support he has, and, indeed, as I have already indicated, how he proposes to be in a position to care for his young child whilst working full time. The father proposes in the orders which he seeks, for the mother to live for a period of six weeks at the parties’ former home.  His evidence today is that during that period of time, he proposes to live with his brother.  According to the father’s material, which is a matter of some confusion to the Court, on the one hand, he proposes for the mother to live in the parties’ former home while he lives with his brother, but the Court was not provided with any evidence as to where the child would live, presumably with the father at his brother’s house for that period of six weeks.  It could only be that, given the father’s oral evidence.  Certainly, those matters were not addressed in the father’s affidavit.

16. The Court does not know anything about the proposed accommodation for the child and the father except that it is with the father’s brother, as to whether such accommodation is appropriate for a child who is two years and 10 months old.  Certainly, the father’s oral evidence today is that he would like to remain living at the home which the parties had been renting previously for a number of years at Town B, because he says that he has done quite a lot of work to this property, that his children enjoy spending time there, however, he says that in the worst case scenario, he will give the property up so that the mother can live there. The father has, of recent times, commenced paying child support for X.  At present, he pays child support for his three children in the total amount of $214 per fortnight.  It appears that out of that $214 per fortnight, either an amount of $34 or an amount of $54 goes towards X, which, at most, is an amount of $28 per week.

17. The mother, in her affidavit, details her current living circumstances.  She annexes to her affidavit a lease which she signed for a fixed period of six months on 28 June 2019.  That lease is due to expire on 28 November 2019.  The mother says that the reason why she moved in the manner that she did is because of the coercive and controlling behaviour of the father during the parties’ relationship, that she was prevented from having a relationship with her family, and, certainly, she says that she has been telling the father that she wanted to leave Town B.  It does not appear to be in dispute between the parties that the mother was aware that the father did not consent or agree to her removing the child from the Town B area.

18. The mother annexes text messages from the father to her affidavit.  Those text messages appear at the various annexures to the affidavit.  The mother’s annexure 1 – there is text messages which were exchanged between the parties on what appears to be 5 June 2019, where the mother says:

    I’m not hiding or running away.  You make me feel unsafe.  You have made threats to ruin my life with stuff that has nothing to do with our daughter.  I have never been spiteful.  You have.  I have messages to prove it.  Stop with the crap.  We need to make this right.

19. The father’s response is:

    So do you want to cooperate or do you want me to make this as hard as possible?  Because the harder you make it now, the harder it will be in the future.  I DO want to make it right Ms Beyer.

20. There is a text message from the father to the mother on 4 June 2019 which reads as follows:

    Ms Beyer, we need to talk now.  Otherwise, everything is coming out, and I’m sure you don’t want that.  We can reach an agreement.

21. On 4 June, the father sent the mother a text which, amongst other things, said:

    You said you wouldn’t take her.  Do this to me?  Let me see her or you will definitely be stuck here forever!!!  No ifs buts or whys.  I’m going for everything now, and with the evidence I have, you will be licky (sic) to even see her ever again, so enjoy this time. 

22. On 23 August 2019, the father sent to the mother an email, which reads as follows: 

    I’m assuming you have changed your number and now I have no way of contacting my daughter.  Good move.  I’m wondering if there was any way I could speak to her because I miss her very much and it has been nearly 2 weeks since I saw her face or heard her voice.  please, Ms Beyer. 

23. In response to that, the mother annexes to her affidavit an exchange between her and some representatives of Telstra in respect of her telephone number. According to that material, it appears that the telephone and the telephone number which the mother had as at separation and certainly as at 21 August 2019 was a post-paid account that was attached to the father’s account. 

24. The mother, according to this chat between a Telstra representative and her, gave her details, the father’s details and was then told that the number had been disconnected by Mr Josa last – and then there is a blank – through Telstra Shop.  It appears from that material that it may have been the father who had disconnected the mother’s telephone number rather than what appears to be the assumption that he makes in the email which he sent on 23 August 2019. 

25. Once again, these are matters that the father has not had the opportunity of addressing in his affidavit because that affidavit was filed prior to the relevant time that these events are said to have occurred, but certainly he did not ask the Court for an opportunity to be able to address those matters today.  Those are matters which are concerning to the Court, but those are matters which no doubt are in dispute and about which the Court is not able to make findings of at this interim stage, but certainly it appears that things may not be quite as set out in the father’s affidavit. 

26. The mother, as I have already indicated, is now subject to a six-month rental lease.  There is no suggestion that her current accommodation is not suitable for her or the child.  She is enrolled in TAFE and the child is enrolled in day care.  The mother has family support in the area where she has relocated to. The lease agreement is annexed to the mother’s affidavit and that includes a clause in respect of termination of the lease. 

1. That clause says that the agreement may only be terminated in accordance with the Act.  And there is also a provision for the tenant who breaches the agreement during its term to be liable for certain costs payable to the landlord if certain things occur.  That is at clause 6.5 of the lease, which is annexed to the mother’s affidavit.  Certainly, it would appear from that document that there would be financial consequences which would be disadvantageous to the mother if she was to break the lease early. 

2. It is not clear why the father thought it was appropriate to mention in his affidavit the mother’s previous employment and what relevance that could possibly have to any matter which the Court needs to determine.  He certainly does not make any allegation that the child is at a risk of harm in the mother’s care, least of all an unacceptable risk of harm in the mother’s care, due to her previous profession.  The father, according to his oral evidence, has limited financial means and he is only able to assist the mother financially by, as I have already indicated, somewhere between $280 to $300 per month. 

3. In interim proceedings, this Court has limited scope for making findings;  however, as I have already indicated, on the evidence being that the mother was the child’s primary carer, there is a strong inference that can be drawn that the mother is the child’s primary attachment figure.  There is no evidence in these proceedings as to how a change in the child’s residence would affect the child given her primary care to date.  The father has two other children from another relationship who are some years older than the subject child. 

4. Those children spend alternate weekends and half school holidays with the father.  The father says that, amongst other things, they are the reason why he is not able to move to South Australia to be close to where the mother and the child have relocated.  In any event, the Court does not expect the father to drop everything and move to South Australia, not in circumstances where he has an established life in the Town B area. 

5. The mother, in her application, proposes for the child to spend time with the father during school holidays; however, that such time occur with the father paying for the costs of travel. There were some discussions between the Bench and the legal representatives for the parties in respect of the practicalities, both financial and given the child’s age and the distance, in respect of the child spending alternate weekends with the father in Sydney.

6. It seems to the Court that, given the limited financial resources of the parties, that a burden on the father or on the mother to fund the child’s travel each alternate weekend from Adelaide to Town B is not something that is sustainable or practicable.  Given the child’s young age and the fact that the mother has been her primary carer, the mother’s proposal for the child to spend half the school holidays with the father also has some difficulties and, in the Court’s view, might not be an appropriate order whatever the circumstances are, that is, whether the child lives in Town B or in Adelaide. 

7. The mother has indicated to the Court today that her alternative position is that she will move back to the Town B area but that she requires a period of time to put some arrangements in place to make that move possible and that once she returns, that she proposes the child spend time with the father each alternate weekend.  Once again, given the child’s young age, if the parties were living in close proximity of each other, such an order might not be in the child’s best interests. 

8. Certainly, the evidence in the mother’s case, and indeed her case, is that she is willing to facilitate a relationship between the child and the father.  The father, in his affidavit, which was, as I have already indicated, sworn in about the middle of June 2019, says that by that stage, which was less than two weeks after separation, the mother had already facilitated FaceTime between the child and the father on four occasions. 

9. The mother has continued to facilitate such time between the child and the father, and she certainly proposes for a continuation of the child’s relationship with the father.  The Court is not satisfied that the orders which the father seeks on an interim basis are in the child’s best interests.  The Court is not satisfied that the evidence supports an order for the child to live with the father and to spend time with the mother as agreed between the parties. 

10. It is the Court’s view and finding that, on an interim basis, it is appropriate for the child to live with the mother.  If the mother continues to remain living in the Adelaide area, the ability for the child to spend meaningful time with her father will be limited but there is still a proposal for the child to spend meaningful time with the father.  There may ultimately be consequences for the child’s relationship given her young age, but at present, given the evidence that the Court has before it, the Court is not prepared to order the mother to return to live to the Town B area with the child. 

11. That may be an order that is ultimately made and certainly an order that is open to the Court to be made in the near future after the parties have had the opportunity of putting on some additional evidence and after there has been some period of time whilst the mother and the child remain living in the Adelaide area and the child’s time with the father is facilitated in the Town B area. 

12. It would of course be ideal for X to be spending shorter periods of time with her father, but the Court can only do its best given the evidence that is presently before it and given the real-life situations that the parents find themselves in.  Legal proceedings never result in ideal situations for any child who is the subject of parenting orders.  Ideal situations for children are for parents to get on and to have a cooperative relationship. 

13. That does not seem to be something which these parents are capable of at the moment.  Whilst there is certainly evidence in the mother’s case which might lead the Court to find that there are reasonable grounds to believe that a parent has engaged in family violence, it is not appropriate, at this interim stage, for there to be any order for parental responsibility, which means that the position in accordance with the Act remains, that is, that the parties have joint parental responsibility for the child. 

14. For all of these reasons, orders will be made as set out in the forefront of these Reasons.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  28 August 2019