Kabe and Carbone

[2018] FCCA 2346

FEDERAL CIRCUIT COURT OF AUSTRALIA

KABE & CARBONE [2018] FCCA 2346

Catchwords:
FAMILY LAW – Application for Recovery Order – parenting – interim hearing – unilateral removal of three children aged 10, 7 and 2 years.

Legislation:

Family Law Act 1975 (Cth) ss.60CC (2), (3)

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MR KABE

Respondent: MS CARBONE

File Number: LNC 469 of 2018

Judgment of: Judge McGuire

Hearing date: 16 August 2018

Date of Last Submission: 16 August 2018

Delivered at: Launceston

Delivered on: 16 August 2018

REPRESENTATION

Counsel for the Applicant: Ms D. Allen

Solicitors for the Applicant: McGrath & Co

Counsel for the Respondent: Mr D. Lewis

Solicitors for the Respondent: Slattery Thompson

ORDERS

1. That until further Order the children [X] born 2008, [Y] born 2011 and [Z] born 2015 (“the children”) live with the father MR KABE (“the father”) and for these purposes the father travel to Sydney to collect the children on a date to be advised by his solicitors to the solicitors on the record for the mother, not before Wednesday 22 August 2018, with the changeovers to happen at a venue as agreed between the parties’ solicitors (noting that the mother has not disclosed her residential address) but provided that should the mother MS CARBONE (“the mother”) return to Tasmania then, in the interim, the children live in a week about arrangement between the parents or otherwise as agreed between the parents in writing.

2. That the matter is listed for directions in the Federal Circuit Court at Burnie on Monday 24 September 2018 at 12.00 noon.

THE COURT NOTES:

1. That this matter being an anticipated relocation Application by the mother then the Court will give priority to the listing of the Application for hearing provided that the Court will need the assistance of a Family Report and provided that the parties comply strictly with the Orders and directions for trial.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 469 of 2018

MR KABE

Applicant

And

MS CARBONE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings involving the three children of the parties.  They are [X], born 2008 ten years of age, [Y], born 2011 seven years of age and [Z], born 2015 and is just two years of age.  The applicant is the father.  He brings an application, effectively, for a recovery order.  However, the application, being served, is for all intents and purposes, an application as to the interim parenting arrangements for the children.

2. The background facts are that the parents were in a de facto relationship from 2007.  They most recently lived at Town A, Tasmania.  On 6 June 2018, it is not disputed, the mother unilaterally related herself and the three children from Town A to Sydney.  The father remains living in Town A.

3. The father relies on his affidavit, sworn 20 July 2018.  The mother has an affidavit sworn on 8 August 2018.  Both parties are represented.

4. The orders that I am asked to make are parenting orders and that being the case, despite the nature of the submissions before me and the application essentially being one for a recovery order, the fact remains that I am to make orders which have the children’s best interests as my paramount consideration and focus.

5. This is a matter which, not unusually, brings with it all of the difficulties of interim applications.  The affidavit material is sparse, prepared obviously quickly and without corroboration.  There are issues of disputed fact and credit on the face of the documents on which I am unable to make findings at this stage.  However, undoubtedly, a Court will be required to do so at some time in the future. 

6. Despite those difficulties and the truncated nature of the application, I am still to follow a course of statutory and intellectual consideration consistent with the well-known decision of the Full Court in Goode & Goode[1] and with reference of the probative evidence and the proposals of the parties to the matters set out in sections 60CC (2) and (3) of the Family Law Act 1975. And insofar as I am able, given the sparsity of information before me, I do reference each and every one of those considerations. 

   [1] [2006] FamCA 1346

7. Not unusually in matters such as this, the primary considerations at section 60CC(2)(a) come to the fore, being that the court is to make orders which benefit children having meaningful relationships with their parents but subject to subparagraph (b) where the Courts are to make orders where appropriate to protect children from family violence or abuse. Those twin pillars are often, and in this case, in direct conflict in the considerations for the Court.

8. The father lives at Town A.  He works on a seven day on seven day off basis, including night work.  His material is itself lacking in detail as to the circumstances that he can arrange, although there is some reference that he has altruistic employers, in respect of the care of the children should they be returned to him. The orders that he asks for are the children live with him and spend time with their mother, presumably by agreement.

9. The mother’s affidavit material is equally sparse or probably more so.  And despite the brave attempts of her counsel to interpret that affidavit as being probative in assisting my consideration, no fault of his and his valiant attempts, the affidavit itself is of little assistance.  To put it this way, the affidavit sets out some background facts that are not in dispute and says this at paragraph 8:

   I left Tasmania on 2018 and came to live in Sydney as my mother resides in Sydney ….

   The affidavit is preceded at paragraph 7 by the deponent saying:

   I say that the applicant has been abusive to me and my son [X] when the applicant has been consuming alcohol.

10. Counsel for the applicant conceded very quickly, and in any event, I can make injunctive orders which attend to that protective concern involving any alleged or asserted alcohol abuse.  But coming back to the respondent’s affidavit, she then appears to justify or attempt to justify her flight, to borrow the word of her counsel, from Tasmania on by reference to some historical issues of family violence.  I am not in a position to determine whether or not those have any factual or substantial factual basis at this stage. However, the importance to me in respect of the current application is that they reference an incident stemming from October 2016, almost two years ago, for which there was a Family Violence order of sort made but which, importantly in my view, lapsed after 12 months being in October 2017.  I can infer, again to borrow the terminology of counsel, that the applicant saw no reason to have those orders either repeated or continued and that the parties continued to reside under the same roof, at least until 6 June 2018, although the actual status of their relationship until that period is questionable.

11. The difficulty that I have in the position taken by the mother which, if I understand it correctly, is that I should effectively adjourn this application to allow the mother to bring more material before the Court to justify what is undoubtedly a unilateral act on her part which has caused the separation of three young children, one of whom is two years of age, from one of their parents resulting in no contact for these three young children with their father since 6 June 2018. 

12. The mother’s application itself or the orders that she seeks in her response provide inter alia that, in the interim, the father spend time with the children every New South Wales school holidays and such time to be spent at a contact centre.  If I was to accede to such an order, I could undoubtedly find that any time for the two year old child, who I can infer is in the process of developing her attachments to important adults, would be severely limited if not severed in respect of at least one of her parents.

13. On the material before me, there is little or no justification put by the mother for what was a unilateral act on 6 June which has, effectively, caused a potential severing of a relationship of three children with one of their parents.  It is well-established and often quoted in these courts that if people wish to relocate, then there is a court door available to them with fairly easy access and they can come to these courts and put their cases.  However, it is not beholden on any parent to act unilaterally in respect of their children in the sense that they be possessions.  It is the children that have the rights in this jurisdiction and rights of a paramount consideration and not the parents.

14. I am reasonably satisfied on the material before the that this mother has shown, at this stage, little or no probative explanation for what was a unilateral act in respect of these three children.  I am of the view that the children should be returned to Tasmania and that the court process should have the opportunity to take its usual course.  But as counsel will know, at least with me, I consider potential relocation matters to have some priority, and will allow every facility of this court, including listing final hearing with priority, to have these children’s issues and parenting issues resolved expeditiously. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 16 August 2018