Lester and Lester
[2010] FMCAfam 1352
•3 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LESTER & LESTER | [2010] FMCAfam 1352 |
| FAMILY LAW – Parenting – recovery order – parental responsibility – Part VII, Family Law Act 1975 – s.60CC primary and additional considerations. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 67U, 67V Children and Young Persons (Care and Protection) Act 1998 (NSW), s.122 |
| Goode v Goode (2006) FLC 93-286 |
| Applicant: | MS LESTER |
| Respondent: | MR LESTER |
| File Number: | SYC 4480 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 3 November 2010 |
| Date of Last Submission: | 3 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Judge |
| Solicitors for the Applicant: | Anthony Ziade & Associates |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Scanlan's Lawyers |
ORDERS
The Conciliation Conference listing of 9 November 2010 be vacated.
All extant applications be adjourned to this Court on 9 December 2010 at 9:30am for mention (“the mention hearing”).
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), [W] born [in] 1997, [X] born [in] 1999, [Y] born [in] 2001 and [Z] born [in] 2001 (“the children”) be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; 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 Respondent Father is to make, file and serve a Financial Statement on or before 10 November 2010.
The Respondent Father may file any amended Response on or before 17 November 2010 if he chooses to do so.
The Application in a Case filed 29 October 2010 be dismissed subject to the issue of costs referred to in notations E and F(c) herein.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The Applicant Mother have sole parental responsibility for [W] born [in] 1997, [X] born [in] 1999, [Y] born [in] 2001 and [Z] born [in] 2001 (“the children”).
The children live with the Applicant Mother.
The children spend time with the Respondent Father as agreed.
AND THE COURT NOTES THAT:
(A)The Applicant Mother’s brother, MR H, is to attend the Respondent Father’s residence at [omitted] (“the Father’s residence”) between 7:00pm and 7:30pm tonight, being 3 November 2010, with the Applicant Mother. Mr H is to approach the Father’s residence and escort the children to his car and the Applicant Mother is to stay in the car. The Respondent Father will direct [Y] born [in] 2001 and [Z] born [in] 2001 to go to the car with Mr H and into the car and into the care of the Applicant Mother.
(B)In the event that the children are not returned in accordance with notation A herein the solicitor for the Applicant Mother may contact Chambers by 9:30am on 4 November 2010 advising that the children have not been returned and a recovery order will be made in Chambers.
(C)Leave was granted in Court today for the Respondent Father to file a Response and supporting affidavit.
(D)The Respondent Father has not filed a Financial Statement to date.
(E)Leave was granted in Court today for the Applicant Mother to amend her Application in a Case filed 29 October 2010 to seek indemnity costs in the sum of $5,500 inclusive of GST or in the alternative, to depart from the Schedule of Costs pursuant to r.21.10 of the Federal Magistrates Court Rules 2001 on the grounds that that would not be sufficient to address the issues.
(F)The purpose of the mention hearing is to consider the following:
(a)as regards parenting matters:
(i)the preliminary views of the Independent Children’s Lawyer;
(ii)whether there should be any change to the interim order for sole parental responsibility made at paragraph seven (7) herein;
(b)as regards property matters:
(i)whether the matter is suitable for the allocation of a further Conciliation Conference listing; and
(c)the Applicant Mother’s application for costs with respect to the Application in a Case filed 29 October 2010 and the Court further notes that Counsel for the Applicant Mother made submissions regarding her application for costs today.
(G)Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Monahan delivered this day will for all publication and reporting purposes be referred to as Lester & Lester.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4480 of 2010
| MS LESTER |
Applicant
And
| MR LESTER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application in a Case filed on 29 October 2010 (“the Interim Application”) by MS LESTER (“the wife”) against MR LESTER (“the husband”) seeking a recovery order and related orders in relation to [X], born [in] 1999, [Y], born [in] 2001, and [Z], born [in] 2001 (“the boys”).
The wife has also commenced property proceedings against the husband pursuant to an Initiating Application filed on 15 July 2010.
The matter had been listed today for mention at the request of the wife’s solicitor as the husband had not filed his response, supporting affidavit or financial statement by 27 September 2010, as required by paragraph 2 of the orders made by this Court on 6 September 2010. The matter is currently listed for a conciliation conference on 9 November 2010 with respect to property matters.
The Interim Application is supported by the wife’s affidavit sworn and filed on 29 October 2010 (“the wife’s affidavit”) and she is legally represented by Ms Judge of Counsel today.
The husband, in his response filed today with leave of the Court, opposes the orders sought by the wife and is seeking different parenting orders in relation to the boys. More specifically, the husband is seeking different property orders and perhaps, more relevant to the Interim Application, parenting orders to the effect that the boys live with him and spend time with the wife. He is also seeking the appointment of an Independent Children’s Lawyer (“ICL”). His response is supported by his affidavit sworn and filed today, with leave of the Court, and he is legally represented by Ms Scanlan today.
Background
It would appear the parties commenced cohabitation from their marriage [in] 1991 and separated, on the wife’s evidence, on 6 January 2010, although the husband asserts it was on [date omitted] 2009, ironically their 18th wedding anniversary, although he admits that he left the former matrimonial home on 6 January 2010.
There are four children of the marriage; namely [W], born [in] 1997 (“[W]”), and the boys.
The matter initially came before the Court on 6 September 2010 and on that occasion Mr Ziade appeared for the wife, and Ms Scanlan appeared for the husband. Given the property nature of the application at that time, orders were made as stated for the parties to attend a conciliation conference and for the husband to file his response and supporting documents by 27 September 2010. Mr Ziade, by his letter to chambers dated 19 October 2010, sought to have the matter relisted because of the failure of the husband to file his responding documentation by the due date.
An order was made by the Court in chambers on 27 October 2010 which stated:
“THE COURT ORDERS THAT:
1. All extant applications be adjourned to this Court on 3 November 2010 at 9:30am for mention (“the mention hearing”).
AND THE COURT NOTES THAT:
A.The Court is in receipt of correspondence from Mr Ziade, legal representative for the Applicant Wife dated 19 October 2010 (“the correspondence”) seeking for the matter to be re-listed in light of the Respondent not filing material in accordance with the Orders made by this Court on 6 September 2010.
B. The purpose of the mention hearing is to consider whether the matter should remain listed for a conciliation conference on 9 November 2010 at 11:00am.”
In the Interim Application the wife seeks the following orders:
“(1) that the respondent immediately return the children, [X] born [in] 1999, [Y] and [Z] born [in] 2001 (“the children”) to the applicant;
(2) that:
(a) any person from time to time holding or acting in the capacity for police officer of the Commonwealth or a state or territory;
(b) any person holding or acting in the office of a child recovery officer, or be authorised and directed with such assistance as he or she requires or they require and, if necessary, by force:
(i) to stop and search any vehicle, vessel and aircraft and search any premises or place for the purposes of finding the children;
(ii) to recover the children;
(iii) to deliver the children to the applicant;
(iv) to arrest without warrant the respondent if he again removes or takes possession of the children;
(3) the respondent be restrained and an injunction is granted restraining the respondent from molesting, harassing or otherwise abusing the applicant, from interfering with the applicant, from the applicant’s manner of living or attempting to do so.”
The Court also gave the wife leave to amend the Interim Application to include a fourth paragraph seeking her costs of the Interim Application to be paid by the husband on an indemnity basis with the claim being $5,500 inclusive of GST.
Issues
The dispute today focuses on two issues:
·whether the boys should return to the wife’s primary care and, if so, whether a recovery order should be made to effect that outcome; and
·whether the conciliation conference listed on 9 November 2010 should be vacated, given the husband’s failure to provide the responding material by 27 September 2010.
The latter issue was not the subject of any lengthy submissions today, given the urgency of the Interim Application. Whilst the Court gave the husband leave to file his response and supporting affidavit in Court today, he has not filed a financial statement to date. Clearly, he has not complied with the relevant orders of 6 September 2010.
In his defence, the husband asserts that his work schedule as [omitted] has prevented him from complying.
Given the proximity of the conciliation conference, the Court cannot see how the property matter can be ready for such a conference, given the wife and the Court have just received the husband’s response and are yet to receive his financial statement. Consequently, the conciliation conference appointment will be vacated today. This issue will be re-visited once the Court has considered and given it’s decision regarding the Interim Application.
Agreed and disagreed facts
The parties agree or are not in significant disagreement in relation to the following:
·the parties were married for a period of some 18 years;
·they have lived separately and apart, in terms of separate residences, since 6 January 2010;
·the boys have primarily resided with the wife since separation, with the exception of the events relevant to the Interim Application and have spent time with the husband, albeit there are differing accounts as to the frequency and success of such visitation;
·the boys came into the care of the paternal uncle, Mr L (“the paternal uncle”), on 26 October 2010, last week, and subsequently into the husband’s care following his return to Australia on the evening of 27 October 2010;
·the boys have not lived with, or spent any time with, the wife and [W] since 26 October 2010; and
·the boys have not attended school since they came into the care of the paternal uncle and then the husband.
The parties disagree about whether the boys’ best interests would be served by them returning to the wife’s primary care, as she seeks, or remaining in the husband’s care, at least until the boys’ views have been ascertained by an ICL, a family consultant or both as the husband seeks.
Submissions
Each of the parties’ legal representatives provided lengthy submissions to the Court. In addition Ms Judge provided the Court with a written case outline of submissions.
By way of summary, Ms Judge submitted that:
·the wife seeks interim parenting orders and a recovery order;
·the Court in determining a recovery order is obliged to have regard to the best interests of the child as the paramount consideration, specifically referring to s.67V of the Family Law Act 1975 (“the Act”);
·the husband has failed to cause the boys to be returned to the wife’s care, has withheld them from school and has prevented them from communicating with the wife;
·the wife has had no choice but to bring the Interim Application at short notice;
·the wife’s costs of these proceedings should be paid by the husband on an indemnity basis, or in the alternative, there should be an order that the husband pay the wife’s costs assessed other than at scale because of the circumstances; and
·it is in the best interests of the boys for the wife to be granted sole parental responsibility on an interim basis.
The wife’s written submissions deal with the relevant factors under ss.60CC(2), (3) and (4).
In relation to s.60CC(2), the wife submits that the husband and his family, by their actions, have actively sought to undermine the relationship between the wife and the boys. Moreover, she asserts that she has applied for an apprehended violence order naming the husband as the defendant. Thus, the wife submits, it is open for the Court to find that the actions of the husband, as set out in the wife’s affidavit, in seeking to influence the boys and actively influencing others to remove the children from the care of the wife, is a form of psychological abuse.
In respect of the additional considerations under s.60CC(3), and in particular “the views of the children” s.60CC(3)(a), the wife submits that the boys, are of course still very young. She submits that it is likely, on the evidence, that the views they express are not their own, but those of an adult. The wife submits that the boys have been encouraged by the husband and his family to use phrases of the type not customarily used by children of their ages, such as “We will reassess things”. The wife asked the Court to draw an inference that the boys are being coached to make various statements, and if the boys are being influenced in this way, then that reflects poorly on the parenting capacity of the husband.
In respect of the “nature of the relationship” between the boys and each of the parties, the wife asserts that the boys have a close relationship with her, having been their primary carer, with the consent of the husband. She also asserts that they have a close relationship with the maternal grandmother and that the husband is seeking to interfere with both these relationships.
In respect of the parties’ “willingness and ability to facilitate and encourage a close and continuing relationship” with the boys and each other, the wife submits that the evidence reveals that the wife has done all that she can do to ensure that the boys see the husband regularly and have regular contact with him. The actions of the husband, in the wife’s submission, totally disregard the relationship between the wife and the boys. It is the wife’s submission that this is likely to continue if the boys are left in the husband’s his care. Moreover, the wife submits that the husband’s actions evidence an inability to foster a relationship between the boys and the wife that is appropriate.
In respect of the “likely effect of any changes”, the wife submits that the sudden removal of the boys from her household and the circumstances in which this occurred is likely to impact negatively upon the boys. The extent of this negative impact, in the wife’s submission, can not be fully ascertained on the evidence, but the situation of itself is one that would enable the Court to find that there is a risk of ongoing damage to the relationship between the boys and the wife, and indeed the boys and [W], as well as the maternal grandmother should they remain in the husband’s fulltime care.
Similarly, the wife submits that there is likely to be a great deal of confusion on the boys’ part and an adverse psychological impact, given the current circumstances.
The wife submits that it is inappropriate for the boys to be separated from their sister, [W], as an interim order.
In respect of the “practical difficulty and expense” of the boys spending time with and communicating with a parent, the wife submits that the husband has withheld the boys from her. The boys have seen the husband regularly whilst in the wife’s care. The husband has and is likely to continue to undermine the wife’s authority over the boys.
As to the “capacity of each of the parents and any other person to provide” for the boys’ needs, the wife submits that the husband’s conduct evidences a lack of capacity to cater for the boys’ needs on any basis whatsoever.
As to the boys’ “maturity, sex, lifestyle and background”, the wife submits that the boys are young and have been in the primary care of the wife since separation.
In respect of the factors relevant to a “family violence” or apprehended “family violence orders”, the wife asks the Court to note that she has applied for an apprehended violence order naming the husband as the defendant that is to come before the [omitted] Local Court on 10 November 2010.
In respect of “any other factual circumstance” that the Court thinks is relevant, the wife submits that the husband’s occupation as a [omitted] requires him to be away from his home for 60 to 66 per cent of the year.
The wife also submits that the evidence suggests that the husband is motivated by financial considerations. As evidence of this, she refers to the husband’s notification to the Child Support Agency of a “change in residency in circumstances” and given these circumstances, he would be under no apprehension as to the wife’s distress and attitude to the removal of the boys in his care.
As to s.60CC(4), the wife submits that the husband has sought to completely undermine the relationship between the boys and herself, the boys and [W], and the boys and their maternal grandmother, and has failed to act responsibly in the circumstances that have arisen.
Ms Scanlan for the husband submitted that:
·the husband has not yet filed a financial statement but will do so shortly;
·the husband lives with his partner, Ms O, in [omitted] and has done so since August 2010;
·the boys are currently at his property at [omitted], being cared for by Ms O’s father, Mr P (the Court notes with some concern that this submission was made after the husband had earlier submitted that the boys were in the care of the paternal uncle);
·the boys have not been attending school since they left the wife’s care, but it is the husband’s intention for them to return to their school, and in that respect, the husband had contacted the school on 27 October 2010 to confirm the boys’ attendance and, moreover, the husband asserts that he requested a meeting with the school to discuss the situation, however this meeting had yet to occur;
·the husband did contact the Child Support Agency on 27 October 2010 to appraise them of the change in the boys’ residence and that this was done on the advice of his solicitor;
·the husband had been unable to organise a suitable date for the proposed mediation with the wife at the relevant relationship centre because his roster did not facilitate a mutually convenient appointment;
·the boys had advised the husband on several occasions since they came in to his care that they wish to remain in his care and not return to the wife’s care;
·the husband proposed to engage an au pair to assist him with the care of the boys and, presumably, to facilitate the boys attending school;
·the husband will be resuming work at [omitted] on 9 November 2010; and
·the husband now proposed to reside with the boys at the paternal uncle’s residence.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in section 64B of the Act. Parenting orders deal with where the child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
Recovery orders
Under s.67U of the Act, the Court has the power to make a recovery order in respect of a child “as it thinks proper.” This provision is subject to s.67V of the Act, in that, in deciding whether or not to make an order, the Court must regard the best interests of the child, or the boys in this case, as the paramount consideration.
Best interests of the child
Sections 60CA through to 60CC of the Act deal with how the Court determines the best interests of a child.
The most relevant to today’s proceedings are the primary considerations in s.60CC(2) of the Act and the additional considerations where relevant. I will consider these considerations further shortly.
Interim hearings
The Full Court, of course, in the case of Goode v Goode (2006) FLC 93-286 (“Goode”) guides this Court’s approach when making interim decisions and interim orders in respect of parenting disputes. At this point it is noted that at paragraph 81 of that decision the Full Court states:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful advice, and disputes between parents as to what constitutes the best interests of the child.”
More specifically, this raises the reality that the Court cannot fully determine issues of credit today as the evidence being presented by the parties has not been tested by cross-examination. That having been said, the Full Court in Goode also stated that “the legislative pathway must be followed”. In other words, the relevant provisions of the Act post the 2006 shared parenting amendments must be followed.
Primary considerations: s.60CC(2)
In respect of the primary considerations, s.60CC(2)(a) of the Act requires the Court to consider the benefit of the child, or the boys in this case, having a meaningful relationship with both their parents.
At this point, it is noted that meaningful does not necessarily mean equal, but it clearly signifies that both parents should be involved with their children and clearly signifies an expectation of time to be spent. The right of the child to spend time with each parent and extended family is clearly a right of the child’s. Consequently the Court will in all likelihood need to give considerable weight to this factor at any final hearing, should it be needed.
The Court is also required under s.60CC(2)(b) of the Act to consider the need to protect a child, or the boys in this case, from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. There is no doubt it would be in the children’s best interests, or in particular the boys’ best interests, to develop a meaningful relationship not just with the husband but with the wife and vice versa. That needs to be balanced against protecting the boys from any physical or psychological harm and the like.
Given the nature of the allegations here the Court is satisfied there is a need to test the issues as to whether the boys have in any way been psychologically harmed by whatever may have occurred between the parties in the past, but more specifically the more recent events.
There are issues here warranting investigation and consequently the Court needs to tread cautiously in the interim arrangements that will be necessary today and beyond.
Additional considerations: s.60CC(3)
As to the additional considerations, any views expressed by the boys, the nature of the relationship between the parties and the willingness and ability of each party to facilitate a close and continuing relationship with the boys, are all issues that will be flushed out in the fullness of time in any final hearing
At the moment we only have the husband’s evidence of what the boys have said to him. The family report, and the submissions of an ICL, if appointed, will be crucial in the Court reaching a decision which will finally determine these matters should the parties be unable to resolve their dispute.
Nevertheless the Court notes that at this stage there is an issue about each party’s willingness and ability to facilitate a close and continuing relationship.
The Court also has to consider issues such as the capacity of each of the boys’ parents to provide for the needs of the child and the extent to which the child’s parents have fulfilled or failed to fulfil his or her responsibilities as a parent. These are also issues that will be determined at any final hearing of the matter.
The Court is also required to consider the likely effect of any changes as well as any other additional factors it considers relevant.
Parental responsibility: s.61DA
The Court is also required to apply a presumption as required by s.61DA of the Act that it is in the best interests of the child, or the boys in this case, for the child’s parents to have equal shared parental responsibility. Section 61DA(2) makes it clear that the relative presumption does not apply if there are reasonable grounds to believe there has been abuse of a child or family violence.
Under s.61DA(4) the presumption may also be rebutted if its application be contrary to the boys’ best interests; those interests being determined by reference to the s.60CC matters that I have referred to previously.
Also of direct relevance to this hearing is s.61DA(3) which states that:
“When the Court is making an interim order the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
Decision
Overall the Court finds the husband’s approach to the Interim Application disturbing. He has failed to comply to date with a Court order, albeit in respect of the property proceedings, and has acted unilaterally to keep the boys in his care despite the longstanding care arrangements that have been in place. He has been assisted in his actions by the paternal uncle who is neither on affidavit nor before the Court today. The paternal uncle’s actions are questionable and possibly in breach of s.122 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). That is not a question for me to decide. The fact that the boys are currently in the care of Mr P is also disturbing because that fact only came to light following some questions by the Court.
The Court is in agreement that the facts of this case warrant the appointment of an ICL, and consequently an order to that effect will be made today.
The Court is also clearly of the view that the boys should be returned to the wife’s care pending resolution of these proceedings.
The Court will stand the matter down briefly to see if the parties can agree on how this can occur. The Court clearly wants the boys back in their school tomorrow. If the parties cannot agree on their safe return to the wife, then a recovery order will issue. If the parties can agree on a mechanism for the boys to spend time with the husband until the matter comes back to Court with the benefit of an ICL, the Court would also encourage them to have those discussions.
However, there will be an order today that until further order the wife have sole parental responsibility. This order can be reviewed with the input of the ICL on the next occasion or beyond.
The Court has also formed the preliminary view that the husband should indeed pay the wife’s costs of the Interim Application for reasons that I can articulate on the next occasion the matter is before me. As the husband did not specifically address the Court on that issue, those submissions can be made at the next Court date.
The right to settle the reasons for this interim decision is reserved.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 8 December 2010
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