L and v

[2002] FMCAfam 354

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L &V [2002] FMCA fam 354

FAMILY LAW – Interim orders – refusal to permit contact – liberty granted to renew application after cancellation of passports and attendance upon counsellor.

Cowling v Cowling (1998) FLC 92-801

Applicant: P J L

Respondent: L V

File No: MLM 7776 of 2002

Delivered on: 15 October 2002

Delivered at: Melbourne

Hearing Date: 15 October 2002

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Ms R. Wheeler

Solicitors for the Applicant: Stedman Cameron

Respondent: Mr LV in person

ORDERS

1. Orders 1, 2, 3 and 4 of the orders made by the Court on 6 September 2002 shall remain in full force and effect until further order.

2. Order 5 made by the Court on 6 September 2002 be discharged.

3. The parties, by consent, are directed to forthwith request the appropriate authorities to cancel all current passports of the children namely JASMV born 2 December 1986, CJHWMV born 14 February 1990 and JLMC born 24 May 1996.

4. That pursuant to section 62G(2) of the Family Law Act 1975 the parties and children JASMV born 2 December 1986, CJHWMV born
   14 February 1990 and a son JLMCK born 24 May 1996 attend upon a Counsellor nominated by the Director of Court Counselling in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties.  The parties to comply with all reasonable directions as to attendance upon the said Counsellor as and when required by the said Counsellor.  Such report to be released 14 days prior to the final hearing date.

5. Upon confirmation of the cancellation of all passports of the children and upon the parties attending counselling as ordered the Respondent be given liberty to apply on short notice for interim contact.

6. The application be fixed for final hearing on 30 April 2003 at 10 am with a hearing estimate of two days.

7. Any affidavits upon which the parties seek to rely shall be filed and served no later than 14 days prior to the final hearing date.

8. Any subpoenas to be issued by either party shall be returnable no later than 14 days prior to the final hearing date.

9. Pursuant to Rule 21.15 of the Federal Magistrates Court Rules I certify that it was reasonable for the Applicant to employ an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 7776 of 2002

P J L

Applicant

And

L V

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application by P J L (the Applicant) filed on 6 September 2002 which the court then heard that day ex parte in relation to issues concerning the children of the marriage between the Applicant and the Respondent L V (the Respondent).  The parties were married on

   
   

   12 February 1983.  They separated on or about 22 July 2002.  There are in fact three children of the marriage namely J A S M V born

   
   2 December 1986, C J H W M V born 14 February 1990 and J L M C K

   born 24 May 1996.

2. The application is supported by an affidavit sworn by the Applicant 5 September 2002 and a further affidavit also sworn by the Applicant on 11 October 2002.  The Applicant further relies upon an affidavit sworn by H B and that affidavit is sworn 10 October 2002.  The Respondent filed a response on 7 October 2002 and in that response he refers to the issue of both children and further raises the issue of property in relation to the parties.  He has relied upon two affidavits; a shorter affidavit comprising eight pages sworn 7 October 2002 and a lengthier affidavit which appears to be also sworn on 7 October 2002 comprising 19 pages.

3. The Applicant before the court on this day is represented by counsel.  The Respondent is self-represented.  Prior to the commencement of the hearing counsel for the Applicant had produced proposed minutes of orders.  Those proposed minutes of orders are to some extent contested.  However, parts of those orders are subject now to agreement in the sense that there is at least agreement that a family report should be obtained and I will consider that matter in due course. 

4. When the matter came before the court on 6 September 2002 orders were made ex parte in relation to this matter and no doubt those orders were made on the basis of the material then available to the court.  The orders made on that occasion were interim orders as follows:

   “1.THAT until further order the children of the marriage J A S M V born 2 December 1986 and C J H M V born 14 February 1990 and J L C K V born 24 May 1996 reside with the Wife who shall have sole responsibility for their day to day care, welfare and development.

   2.THAT until further order neither party, their servants or agents shall remove the Children J A S M V born

   
   

   2 December 1986 and C J H M V born14 February 1990 and J L C K V born 24 May 1996 from the Commonwealth of Australia and it is requested that all officers of the Australian Federal Police give effect to this order.

   3.THAT until further order the Australian Federal Police place the name of the said Children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Children’s names on the Watch List until further Order of the Court.

   4.THAT until further order the Husband is hereby restrained by himself, his servants or agents and an injunction is granted restraining him from applying for or obtaining a passport in the name of the said children without an Order of the Court.

   5.THAT forthwith upon service of this Order the Husband deliver any passport in his possession or power relating to each of the said children to the Registrar of this Registry of the Court to be held by the said Registrar pending further Order of the Court.

   6.THAT the further hearing of this matter be adjourned to the duty list on 15 October 2002 at 9.45am.

   7.THAT the Husband have liberty to apply at short notice.”

5. It is clear upon a proper reading of the affidavit material in support of the application this day for a final hearing date with no orders as to contact at this stage, that the Applicant relies upon a number of allegations which I stress at the outset are largely denied by the Respondent in relation to alleged violence and mistreatment of principally the Applicant but in circumstances where those allegations, if true, relate to events which occurred in part on occasions before one or other of the children.  It is not appropriate in a busy duty list of this kind to recite each and every allegation set out, particularly where the court is required to make an urgent interim order which is an order to be made between now and further order or in all probability between now and the final hearing of this matter which, as I have indicated to the parties, will occur on 30 April 2003.

6. It is sufficient for the present purposes to note that each and every one of the allegations are what might be described as significant allegations which would in general relate specifically to the welfare of the children and it is after all the children's interests before this court which are paramount in a case of this kind. 

7. It is not in dispute between the parties that the husband had been absent from Australia from on or about 27 July 2001 and did not return until on or about 17 July 2002.  I have indicated already the date of separation.  It is clear, therefore, that as a result of the absence of the father there has not been regular contact in the most recent times; that is, for at least the period of 12 months which I have just described.

8. When the court has to consider the interim orders that may be made in relation to residence the court is obliged to consider the matters raised in the often-cited decision of Cowling v Cowling (1998) FLC 92-801. In that case the court notes that the Family Law Act does not distinguish the procedure to be followed in relation to interim matters to that which is to be followed in relation to final proceedings. It is important for the court to note, and I do note, in relation to the present case that there are certain matters which the court should have regard to as relevant criteria. In Cowling v Cowling the court quite properly referred to applicable criteria in relation to what was then described in the earlier cases of ‘interim custody’.

9. The court in Cowling’s case states:

   “15.The applicable criteria relating to the determination of an application for an interim custody order have been considered by the Court in a number of authorities, particularly Cilento and Cilento (1980) FLC 90-847, Griffiths and Griffiths (1981) FLC 91-064, Rainer and Rainer (1982) FLC 91-239 and C and C (1996) FLC 92-651. In our view notwithstanding the passage of time since the delivery of three of those judgments, the increase in the number of applications before the Court since then and the subsequent enactment of the 1995 Act, the criteria referred to therein, remain relevant in relation to an application for an interim residence order. Moreover, the correctness of those decisions was not challenged on the hearing of this appeal.

   16.The relevant legislative provisions now governing an application for a parenting order are to be found in Part VII of the Family Law Act. Section 60B sets out the objects of that Part and the principles underling those objects, whilst s 65E provides that, in deciding whether to make a particular parenting order in relation to a child, an interim residence order is a parenting order, the Court must regard the best interests of the child as a paramount consideration. Section 68F sets out a number of matters which the Court must consider in determining what is in the child’s best interests.

   …

   19.Having regard to the earlier authorities of the Court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows: 

   20.Firstly, having regard to the provisions of s 65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration. 

   21.Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues.  Accordingly, as a general rule, any interlocutory order made should promote that stability. 

   22.Thirdly, where the evidence clearly establishes that, at the date of the hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary.  Such indications would include but are not limited to convincing proof that the child's welfare would be readily endangered by his/her remaining in that environment. 

   23.Fourthly, the Court is entitled to place such weight upon the importance of retaining the child's current living arrangement as it sees fit in all the circumstances.  In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo.  In particular, the Court may examine the following issues:

   ·   whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.

   ·   whether the current arrangements have been unilaterally imposed by one party upon the other.

   ·   the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.

   24.Fifthly, where the evidence does not establish that at the date of hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child's best interests.  In undertaking that evaluation, regard must be head to the interim nature of the proceedings and the procedure referred to in C and C (supra).

   25.Finally, in determining whether, at the date of hearing, a child living in a settled environment, consideration should be given, inter alia, to the following: 

   ·   the wishes, age and level of maturity of the child.

   ·   the current proposed arrangements for the day to day care of the child.

   ·   the period during which the child has lived in the environment.

   ·   whether the child has any siblings and where they reside.

   ·   the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.

   ·   the educational needs of the child.”

10. It is appropriate to refer to that often-quoted reference in full particularly in a case of this kind where there are obviously significant allegations, counter-allegations and denials by both parties.  It is useful for the parties to appreciate that the paramount interests that the court needs to consider are the interests of the children. 

11. On an interim basis it is almost impossible for the court to consider and resolve those issues in dispute between the parties.  At present I am satisfied that the children have resided with the mother and it is not suggested that they should not continue to do so in the future.  The issue taken by the father in relation to proposed orders continuing, which have been made earlier by this court, are those orders which refer to the mother having sole responsibility for the children's

    
    

    day-to-day welfare and development.  To that extent, leaving aside for the moment the issue of sole responsibility for day-to-day care, it does not seem to be seriously suggested that the children are currently living in an environment from which they should be removed.

12. The real issue in this case is whether there should be an order made by the court in the current circumstances for some interim contact to occur between the children and their father prior to the final hearing.  In my view, the question of contact is an important issue in the interests of the children.  It is clearly in the interests of children in normal circumstances that they continue to maintain and have contact with their father in accordance with the best arrangements that may be available having regard to all the circumstances of the case.

13. In the present case, however, I am satisfied that there is sufficient material to raise doubts about whether at present contact would be appropriate or desirable in the interests of the children at least until such time as the parties have attended counselling and a family report prepared or the benefit of views of the counsellor conducting the family report are made known to the parties.  I indicated during the course of submissions that the preference is that the Family Court report be prepared by an external counsellor which can be undertaken, as I understand it, in a far shorter time frame than might be the case if the task were undertaken by an internal counsellor.  It is for that reason that I propose making an order for that purpose.

14. It seems to me that is part of the process that should be put in place to at least endeavour to speed up the prospect of there being an interim contact order made prior to, as I have indicated, 30 April next year which is the earliest hearing date the court can provide.  However, on the material before me it is also clear that there is a major dispute between the parties and a real issue as to whether or not there is a risk that if contact occurred at the present time that contact might result in the children being removed overseas.  It is not for this court to resolve the dispute between the parties as to whether or not there are in fact passports currently in existence issued by the Belgium government relation to the children. 

15. It is noted, however, that the wife asserts that passports were delivered.  It is asserted that they were delivered by registered mail and the signature of the party receiving the registered mail item is the signature of the husband.  The husband, on the other hand, has denied on oath in evidence before this court seeing any passports or having any knowledge of such passports and from the bar table when the exhibit from Australia Post, which is attached to the affidavit filed by the wife on 11 October 2002, was produced.  He denied strongly that his signature is on the document to which reference has been made and has further denied strongly that he has ever received Belgium passports for the children.  Both parties have consented to an order to be made that they both jointly request that any current passports held by the Belgium authorities, and I interpolate, those held by Australian authorities, be cancelled forthwith.  An order of that kind will be made presently. 

16. In all the circumstances it is my view that at this stage, having regard to the seriousness of the allegation and the unresolved conflict between the parties and the fact that there has only been a recent return from an extended absence overseas of the father and that the final hearing is in fact now fixed for April next year with a family report to be expedited in the meantime, it is appropriate that I grant liberty to the father to renew, on short notice, an application for contact, but that the application only to be made upon the parties attending the counsellor in accordance with the order that I am about to make, and upon the parties being satisfied that all current passports have in truth and in fact been cancelled in relation to the children.

17. It remains for me to consider whether or not the orders made by His Honour Phipps FM on 6 September 2002 should continue.  In my view, whilst I understand and appreciate the reservations that the father has in relation to the expression "sole responsibility", at present that is only an interim order albeit an interim order which provides appropriate protection and certainty in relation to the children.  Accordingly, it is my view that order number 1 of the order made by the Federal Magistrates Court on 6 September 2002 should remain in full force and effect until the further order of this court.  Likewise, I am satisfied that orders 2, 3 and 4 of those orders shall remain in full force and effect until further order of this court, and I so order. 

18. I am not satisfied, however, that it is appropriate to continue order 5 of the orders made of the court on 6 September 2002 and I will order that it be discharged.  In lieu thereof, I would order that the parties forthwith request the appropriate authorities to cancel all current passports of the children of the marriage and upon confirmation that those passports have been cancelled that the husband have liberty to apply to the court in respect of contact.  I further order that the parties and the children of the marriage attend upon a counsellor nominated by the primary dispute resolution coordinator of this court on a date and time to be advised for the purpose of the preparation of a family report, with such report to be released to the parties and to the court prior to the final hearing date.

19. I further order that the final hearing of this matter be fixed as a two-day hearing on 30 April 2003, that any affidavits upon which the parties seek to rely shall be filed and served no later than 14 days prior to the final hearing date, that any subpoenas to be issued by either party be returnable no later than 14 days prior to the final hearing date. 

    
    

    I otherwise make orders certifying that this was a matter appropriate for the Applicant to engage the services of an advocate in accordance with the Federal Magistrates Court Rules.

1. I note that during that period of absence the father continued to be available for telephone contact and that the purpose of the absence was to endeavour to establish a residence in Belgium for himself and the family

2. The orders are as follows:

   (1)Orders 1, 2, 3 and 4 of the orders made by the Court on
   6 September 2002 shall remain in full force and effect until further order.

   (2)Order 5 made by the Court on 6 September 2002 be discharged.

   (3)The parties, by consent, are directed to forthwith request the appropriate authorities to cancel all current passports of the children namely J A S M V born 2 December 1986, C J H W M V born 14 February 1990 and J L M C K born 24 May 1996.

   (4)That pursuant to section 62G(2) of the Family Law Act 1975 the parties and children J A S M V born 2 December 1986, C J H W M V born 14 February 1990 and J L M C K born 24 May 1996 attend upon a Counsellor nominated by the Director of Court Counselling in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties.  The parties to comply with all reasonable directions as to attendance upon the said Counsellor as and when required by the said Counsellor.  Such report to be released 14 days prior to the final hearing.

   (5)Upon confirmation of the cancellation of all passports of the children and upon the parties attending counselling as ordered the Respondent be given liberty to apply on short notice for interim contact.

   (6)The application be fixed for final hearing on 30 April 2003 at
   10 am with a hearing estimate of two days.

   (7)Any affidavits upon which the parties seek to rely shall be filed and served no later than 14 days prior to the final hearing date.

   (8)Any subpoenas to be issued by either party shall be returnable no later than 14 days prior to the final hearing date.

   (9)Pursuant to Rule 21.15 of the Federal Magistrates Court Rules
   I certify that it was reasonable for the Applicant to employ an advocate.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  15 October 2002