Lyall and Lyall

[2008] FamCA 47

FAMILY COURT OF AUSTRALIA

LYALL & LYALL [2008] FamCA  47

FAMILY LAW – CHILDREN – Recovery – Orders made by Magistrates’ Court discharged

Family Law Act 1975 (Cth)

APPLICANT: MRS LYALL

RESPONDENT: MR LYALL

FILE NUMBER: MLC 686 of 2008

DATE DELIVERED: 31 January 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr James

SOLICITOR FOR THE APPLICANT: Randles Cooper & Co Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Leeton

SOLICITOR FOR THE RESPONDENT: Ryan Maloney Anderson

Orders

1. That the order of the Magistrates' Court at Mildura, made on 15 November 2007 be discharged.

2. I direct that the warrant issued pursuant to the order of 15 November directed to the Marshall or officers of the Australia Federal Police and/or officers of the police forces for the states and territories of the Commonwealth of Australia be returned to the Federal Magistrates' Court of Australia to be attached to this file.

3. That paragraph 7 of the orders made in this Court on 4 May 2007 be suspended until the determination by the Federal Magistrates' Court of Australia.

4. That until further order of that court, the child L…, born 22 August 2000, live with the wife at a location within the Melbourne metropolitan area, and that the wife be restrained from moving the child from that location without the written consent of the husband or further order of a court.

5. That until further order, the wife deliver the child L to the husband on a fortnightly basis as follows:

   (a)On the first weekend of the fortnight commencing this day, with the wife delivering the child to the husband at his home in C as soon as practicable, but no later than 9.30 pm on a Friday night, and collecting the child from him at 1 pm on the following Sunday afternoon;

   (b)On the second period a fortnight later, delivering the child by air to the husband at the Mildura airport, ensuring that the child arrives as far as practicable no later than by the flight commencing at 6.25 pm or thereabouts on the Friday, with the husband returning the child by the same method, so that the child leaves Mildura no later than 5 pm on a Sunday.

6. That the wife deliver the child to the appropriate airline official at no later than the time required to ensure the child flies to Mildura on the Friday evening, and the husband ensure that the child is delivered to the appropriate airline official by no later than the appropriate time to ensure that the child returned on the 5 pm or thereabouts flight on the Sunday.

7. That the wife be responsible for all of the airfares and travelling costs for the child until further order.

8. That the wife advise the husband by telephone that the child has boarded the flight on the Friday, and the husband advise the wife on the return flight of the fact that the child has boarded the flight, and each party otherwise ensure that the other has their mobile telephone numbers at all times, and that during the periods of time referred to, each mobile is kept on.

9. That these proceedings be transferred to the Federal Magistrates' Court of Australia with a request that they be listed urgently in the circuit commencing in March in Mildura.

10. That it is requested that the Federal Magistrate responsible for the Mildura circuit in March, if possible, convene a telephone mention with the practitioners of the parties to ensure that all material is filed for that hearing and any applications in relation to the appointment of an Independent Children's Lawyer or, in this case, the re-appointment of an Independent Children's Lawyer, and any report to be prepared under s 62G of the Family Law Act1975 (Cth) is undertaken in sufficient time for the hearing to commence in Mildura in March.

11. That the reasons for these orders be transcribed and then made available to the parties.

12. All questions of costs of each party of this day be reserved to be determined by the Federal Magistrates' Court of Australia

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Lyall & Lyall.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 686 of 2008

MRS LYALL

Applicant

And

MR LYALL

Respondent

REASONS FOR JUDGMENT

1. This is a matter that has come to me from the judicial duty list.  The application has a degree of urgency about it for a number of reasons, which include the fact that the Magistrates' Court at Mildura has issued a recovery order and consequential warrant for collection of a child in circumstances where the applicant before me is clearly in breach of orders to which she consented in this court sitting in Mildura as little time ago as May 2007.

2. The dispute centres around one little girl, but probably in reality two children, the child L born in April 2000, so she is not yet eight years of age, and a son who was born in April 1998. 

3. These two children are children of the marriage. I am told that the parties separated in about 2005, and over a vague period of some two years, they managed to share the children in some way or other, ultimately culminating in consent orders in this court sitting in Mildura in May of 2007.

4. Under those orders, which are quite simple and quite explicit, the son is to live with the husband, and the daughter is to live with the wife.

5. Obviously at that time, the parties were sufficiently capable of sorting out problems because they agreed that they would each have time with the other child who was not in their care by agreement, and therein lies part of the dilemma, because a magistrate, on application - which I presume was ex parte - brought by the husband, issued a recovery order.

6. That order provided that upon collection of the daughter, she was to be handed to the husband.  He was not entitled to have the daughter under the orders, other than by agreement.  The order should not have been made. 

7. For that reason, I propose to discharge it.  It really matters very little because the parties are before me, and therefore sensibly, they have asked me to make a determination.

8. The case has a number of very unpleasant and curious features.  The wife was living with a man who was clearly not only an alcoholic, but violent, and he was also mentioned in the orders made in May 2007.

9. Around the same time as these orders were made, the wife ended that relationship and commenced a relationship with Mr R about whom I know little, other than the fact that he lives in Melbourne and is a driver by occupation.

10. He, as Mr James for the wife said, was sufficiently generous to be supporting the wife who is otherwise reliant upon the taxpayers of Australia.

11. The problem seems to extend from the fact that the wife left C, which is near Mildura, and unilaterally moved to live in Melbourne.  When I say "unilaterally", I am a little confused on the evidence which is, at best, vague, and in some cases misleading, because the wife made it clear to the husband that she was moving to Melbourne.  Just exactly what happened thereafter I am not entirely sure, other than the fact that the husband went to the State Magistrates' Court in Mildura and applied for the orders that he did.

12. The wife should be strongly criticised for the fact that she made the decision to move to Melbourne unilaterally, if in fact that is what she did, but more importantly in clear, unequivocal breach of the orders that she consented to in May 2007.

13. Apart from that, she then, on my reading of the husband's complaint, went to ground, and this case has taken a number of weeks to get to the stage that it is today.  During that particular interval, the two children have not had any association with one another.  So there is a variety of reasons why the wife should be strongly criticised.

14. Of serious concern to me is the fact however, that the husband, presumably with some knowledge and agreement of the wife, has put the former matrimonial home in C on the market and there now appears to be a buyer.  The wife was living in that house until the time she moved to Melbourne.

15. Neither party seems to be sufficiently able to pay the mortgage, and I am told that the husband in fact moved to the property after the wife left and arranged a garage sale using the funds to pay the mortgage on an interim basis.  It does not augur well for the future financial circumstances of either party if that has to happen.

16. Despite all the criticisms I might make of the wife for what she has done, and in normal circumstances I would have no hesitation at all in saying that the child is going back to C, I am left with the unusual dilemma here of having to say that the child has nowhere to go if she goes back to C.

17. The husband, for his part and to his credit, says that he really just wants his relationship with the child to continue, and he was not applying for a change of residence.  That in itself means that the child has to remain primarily living with her mother, and I am told by Mr James for her that the wife cannot live with either her father or her grandmother who live near C, on any basis other than a temporary one.

18. She had moved out of the home and moved to live with a female friend, but that woman, whom I am told was named R, has now taken on a boarder of some description, so she cannot go there.

19. If I made an order that the child return to C, then presumably the wife would either have to return there and find some accommodation, or alternatively, hand the child over to the husband.  That does not really seem to be what he wants, notwithstanding a proposal was put to me today that the wife should have some time to reorganise her affairs, and if that did not work then the child come to live with him.  I do not think, on the evidence, that that is an appropriate course of action for me to contemplate.

20. The wife has some basis to say she should not be returning to C because of the fact that her former partner who was named in the orders in May was living there and had created an enormous incident in which she was assaulted.  She has every basis to be fearful of him.  To some extent, that leads to an unusual question about why no police action was taken, and no intervention order was sought either.  I am sure some more of that is going to come out in the evidence in due course.

21. I canvassed with each of the parties the fact that, one way or the other, this case needed some urgent attention, and having regard to their difficult financial circumstances, the best place for it to be dealt with was in the Federal Magistrates' Court where they would get a final hearing,  I have made some inquiries and can transfer the case directly to that court with a request that it be dealt with in the March sittings in Mildura.  The problem is what I do in the meantime. 

22. The wife's proposal is that she be permitted to retain the child living in Melbourne.  The evidence is vague if not completely missing as to how she would care for the child living in Melbourne, and again, this is where I glean some information about Mr R’s largesse.  It seems that the wife is now living in the western suburbs of Melbourne.  It would have been much more useful if I had been given some details about all of that in the affidavit and it would have enabled the husband also to prepare his case. 

23. On the other hand, the husband's case was such that he provided as little information as the wife did, and much of what I have gleaned has either been given to me, very sensibly, by counsel, or by reading the affidavit that was filed in the Mildura Magistrates' Court.

24. Having said that, therefore, I am left with the situation where I have to determine the matter along normal interim hearing lines.  The legislation sets out that in any parenting application, I have to contemplate the question of equal shared parental responsibility first.  In this case, that is not a major problem because the parties agreed to have equal shared parental responsibility when they had the orders made in May.  Notwithstanding that, we now have a new application.

25. This is a case, however, on the basis of the material I have, where it would be inappropriate for me to look at that issue again on an interim basis, and I rely on s 61DA(3) to say that it is therefore inappropriate for me to make any orders associated with equal shared parental responsibility.

26. I might add that I have an uncomfortable feeling about the fact that these parties were able to have vague contact orders and equal shared parental responsibility in May, and yet here we are less than a year later with a dispute like this.

27. I am obliged to make a parenting order.  I turn to the provisions that each counsel has drawn my attention to in s 66CC but even those particular provisions do not assist me a great deal.  Section 60CC(2) says that the primary consideration in any matter is:

    The benefit to the child of having a meaningful relationship with both of the child's parents.

28. As I have pointed out, a meaningful relationship does not necessarily mean an optimal one, and what I have to look at is whether the wife's proposal enables the relationship to continue between father and child in an appropriate and meaningful way.

29. The wife's proposal is that the time between father and daughter, not to mention, brother and sister, occur on each alternate weekend from effectively Friday through to Sunday. 

30. That, to some extent, is not terribly accurate because on one of those fortnights, the wife drives to Mildura and she is not likely to get there until a time that I would have expected the child to be asleep anyway.  So in reality, the child probably cannot spend any meaningful time with her father until Saturday morning, and then the wife is suggesting that the time with the husband conclude around 1 pm on Sunday, enabling the wife to return to Melbourne with the child in the meantime.

31. As well as that, she is seeking he have a further period of time on the Sunday morning when the two children can be together.

32. It seems to me that, with very little evidence about what had happened between not only 2005 and 2007, but between May 2007 and now, I am unable to assess just exactly what sort of a relationship it was between the child and her father, let alone between brother and sister.

33. It seems to me that, in the circumstances, doing the best I can, the relationship can still be maintained in a meaningful way for a limited period of time, providing it is a fortnightly basis.

34. The wife's second proposal is that she will fly the child unaccompanied to Mildura on the alternate fortnight, which will obviate the necessity for the long haul by car, but that creates the problem of the cost of the travel.  I am told that the cost is between $100 and $180 each way, depending on whether “specials” can be obtained, and the wife has agreed that she should meet that cost.  That is an issue that has some attraction, but the dilemma will be if her financial circumstances are such that she cannot afford it, bearing in mind that if she is living with Mr R and consequently she should not be getting taxpayers' funds.  When the matter comes on for hearing on an interim basis, if those orders are not complied with, then there is a real probability that a court might take a view that the proposal for the future relationship to be maintained by air travel is unrealistic.

35. The second primary consideration is the need to protect the child from psychological and physical harm by being subjected to, or exposed to, abuse, neglect or family violence.  That provision does not necessarily mean violence as between the parties themselves. 

36. In my view, there is some evidence here of the child being subjected to exposure to that sort of harm as a result of a former relationship between the wife and her former partner.  I place little weight on that because I am not at all convinced about how serious it is, having regard to the fact that the police had not apparently been involved, nor is there any intervention order proceedings, and equally importantly, I am not sure where Mr R fits into that picture.  It seems to me, however, that it is a matter that I should at least contemplate.

37. Section 60CC then goes on to require a number of other considerations that I have to take into account.  First is the views expressed by the child, and having regard to the child’s age, I propose to give that no weight.  I am not at all sure what she would want to do.

38. The next is the question of the nature of the relationship between the child and each of the parents, as well as other persons who have some sort of relationship with her.  It seems to me that I have no evidence about how the relationship with her father has proceeded, other than the fact that some sort of vague contact arrangement has occurred over the period since separation in 2005.

39. I am told that the two children attended the same school together, but I know little more about how close they are to one another.  Another consideration is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  If that was a factor that was going to make some significant difference in this case, then I would have little hesitation in not allowing the child to remain in Melbourne, because I have some serious concerns about just how serious the wife is about facilitating the relationship between the child and her father.

40. I draw some conclusion there on the basis of the fact that the correspondence would suggest that there was a stalling of the proceedings rather than facing the music, and if that is in fact what happened, then in a final hearing, the wife will face significant criticism.

41. Another consideration is the likely effect of the change of circumstances of the child in separation from the parents and her brother.  Given the evidence is scanty and I do not know what impact the move to Melbourne has had on the child vis a vis her relationship with her father and her brother, it seems to me that some evidence about that would have been of some assistance to me.

42. Another consideration is the practical difficulty and expense of a child spending time with and communicating with a parent.  I do not propose to deal with that matter at all, because as I have said in discussions with counsel, I have the wife's proposal which I intend to make into an order, and if those orders are not carried out, then this particular provision will become a very significant issue in the case when it ultimately comes on for hearing.

43. It may very well be that the only way that a meaningful relationship between father and daughter, and brother and sister, is going to occur is if it happens in the Sunraysia area, and it may be that it is the practical difficulty and expense issue that tips the balance in favour of the child having to remain in the Sunraysia area.

44. I am also obliged to take into account the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs.  One of the difficulties I have here is that I know very little about how the child lives, and just exactly what her emotional and intellectual needs are.  I do not know, for example, what her relationship is like with her father, and just how the husband is capable of providing for her emotional needs as well as her physical and intellectual needs.  There are no cultural issues here that impact on this child. 

1. One of the factors that I suspect will make a significant difference, but it does not make a difference on an interim basis here, is the attitude of the wife and, specifically, the attitude towards the child and her responsibilities of parenthood demonstrated by her actions.  I have already made it very clear that I am strongly critical of what she did, not only in terms of the unilateral action, but also the specific breaches of the court order.  The excuse that she did not have legal advice does not carry a lot of weight.

2. There are no family violence issues as between the parties here that would make any difference.

3. One of the things that the court does consider in these sorts of cases is the way in which a parent fulfils or fails to fulfil their responsibilities as a parent in relation to enabling the other parent to participate in decisions and spending time with the other child.  Again, I reiterate my criticism of the wife, but I am also puzzled as to why the husband adopted the position he did, not so much in going to the court to solve the problem, but by effectively locking the wife, to some extent, out of the C area by pushing the sale of the home.  That issue, no doubt, will be traversed in the hearing that will hopefully occur in Mildura in March.

4. In the end, this is a balancing act where the overriding consideration is what is in the best interests of this child.  I am left with a situation where the husband concedes that he wants a relationship, but is not seeking residence at this stage, and therefore the wife will continue to be the primary carer. 

5. Importantly, however, I must ensure that there is a relationship between father and daughter and sister and brother as well.  It seems to me the only way that is going to happen on an interim basis is if I adopt the wife's proposal on the basis that she will have the Sword of Damacles hanging over her head, and having regard to the short period of time until when the Federal Magistrates' Court can have a look at the matter, if she does not comply with these orders, not only in the spirit but also in the letter, then I would have little hesitation in saying that a Federal Magistrates' Court might take a different view to the one that I am taking at the moment.

6. On that basis, I propose to make orders allowing the wife to reside in Melbourne on an interim basis only until the Federal Magistrates' Court can look at the matter. 

I certify that the preceding Fifty (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  6 February 2008