Magoon and Magoon
[2010] FMCAfam 1355
•10 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAGOON & MAGOON | [2010] FMCAfam 1355 |
| FAMILY LAW – Children – parenting – interim relocation – unilateral action by one parent – risk to children. |
| Family Law Act1975, ss.60CC(2)(a) & (b), 60CC(3)(c), (i), (j), (k), 60CC(4); 60CC(4A), 60K, 65DAC, 69ZW Evidence Act1995, s.131(2)(g) |
| Brown v Federal Commissioner of Taxation (2002) 187 ALR 714 Mazorski v Albright (2008) 37 Fam LR 518 Morgan v Miles (2008) 38 Fam LR 275 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MR MAGOON |
| Respondent: | MS MAGOON |
| File Number: | CAC 694 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 17 September 2010 |
| Date of Last Submission: | 18 October 2010 |
| Delivered at: | Canberra |
| Delivered on: | 10 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Howard |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson Canberra |
| Counsel for the Respondent: | Mr W. Tolten |
| Solicitors for the Respondent: | Gilfoyle Solicitors Brisbane |
ORDERS
The children [X] born [in] 2003 and [Y] born [in] 2004 are to be returned to live with the Father in Canberra at the earliest agreed time. In the absence of agreement, the children should be returned within
14 days from the date of these Orders.
The Mother is thereafter restrained from removing the children from the Australian Capital Territory.
In the absence of agreement, the Consent Orders made in June, and as relevantly amended in September, shall continue to apply.
IT IS NOTED that publication of this judgment under the pseudonym Magoon & Magoon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 694 of 2010
| MR MAGOON |
Applicant
And
| MS MAGOON |
Respondent
REASONS FOR JUDGMENT
Introduction & Procedural History
A final hearing has been fixed in these parenting proceedings, which concern the parties’ two children – [X] (aged 7) and [Y] (aged 6) - for early March 2011.
The sole issue to determine in these proceedings at the present time relates to whether the children should live with their Father in Canberra or with their Mother in Brisbane. The answer to this question, to a significant degree, in my view flows from a consideration of the procedural history. That history, so far as immediately relevant, is as follows:[1]
[1] For current purposes, it is procedurally unnecessary to record much in relation to the Initiating Application and Response, other than to note that they were filed on 6th May and 18th June, respectively.
(a)Consent Orders were signed by the parties on 18th June 2010, which provided for the children to live with their Father in Canberra;[2]
(b)Further [interim] Consent Orders signed by the parties, dated 21st June 2010, were made by the Court on that date;
(c)Application in a Case, filed by the Father on 21st July 2010, in which he sought the return of the children to live with him in Canberra;
(d)Application in a Case, filed by the Mother, also on 21st July, seeking to discharge previous parenting orders, for the matter to be transferred to the Brisbane registry of the Court, and for the children to live with their Mother in that city;
(e)Notice of Child Abuse or Family Violence, filed 21st July 2010;
(f)Orders were made on 30th July for the appointment of an Independent Children’s Lawyer, and for the provision of a Report from the Office of Children Youth and Family Support pursuant to s.69ZW of the Family Law Act.[3]
(g)On 3rd August, pursuant to orders made in Chambers, the parties were directed to attend a reportable family conference on 30th August 2010;
(h)On 17th September 2010, the parties signed, and the Court made, further consent orders in relation to the children spending time with both parents during the school holidays;
(i)On 17th September, the matter was fixed for final hearing, for two days, commencing on 3rd March 2011.[4]
[2] Those Consent Orders provided for the children to spend time with their Mother in the July school holidays, and that they would to be returned to their Father after school on 19th July. It would appear, however, that these orders were never formally made by the Court, although they were signed by the parties. The original document, signed by the parties, is on the Court file. Should the parties wish, submissions may be made regarding what, if anything, needs to be done with these Orders.
[3] In the course of the Court event on 30th July 2010, the drug test analysis from the Victorian Institute of Forensic Medicine in relation to Mr Magoon, dated 17th July 2010, was supplied to the Court. The only drug detected was codeine, which Mr Magoon said came from taking Nurofen Plus.
[4] In preparation for the trial, orders were made in Chambers on 24th November for the parties to attend a further reportable family conference on 28th February 2011.
Evidence
In the relatively short time that these proceedings have been on foot there has been the production of a not insignificant amount of material. This includes:
(a) a report prepared by the Office of Children Youth and Family Support (“OCYFS”), pursuant to section 69ZW of the Family Law Act1975 (‘the Act’), dated 24th August 2010 (released to the parties on 2nd September 2010)
(b) a short report from a Family Consultant (Ms D), dated 30th August 2010 (released to the parties on 2nd September 2010).
In due course, these reports will be admitted into evidence formally. For current purposes they may be taken to have been impliedly admitted on the principles expressed by Warnick J in SPS & PLS.[5]
[5] SPS & PLS (2008) FLC ¶93-363 at [8] – [19].
A somewhat different matter of evidence arose in the course of the interim proceedings. It was a letter from the Mother’s solicitors to the Father’s solicitors (dated 13th September). The letter is headed ‘without prejudice save as to costs.’
The Mother’s Counsel objected to this letter being put before the Court for the obvious reason of it being a ‘without prejudice’ offer to settle the proceedings in toto. Counsel for the Father, however, argued that the letter was highly relevant to the issues currently before the Court and was admissible pursuant s.131(2)(g) of the Evidence Act1995.
Section 131(2)(g) provides that subsection (1), which prohibits communications regarding settlement of a dispute being adduced, does not apply if:
evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence...
In Brown v Federal Commissioner of Taxation, Emmett J considered s.131(2)(g).[6] His Honour confirmed that the exception provided in sub-paragraph (g) required that the material to be adduced must be directly relevant to the matters before the Court.
[6] Brown v Federal Commissioner of Taxation (2002) 187 ALR 714 at p.754 [185].
For her part, the experienced ICL, Ms Lloyd, said that the ruling on the admissibility of the letter was a matter for the Court. She submitted, however, that the letter ‘has some strong probative value to the case.’[7]
[7] See Transcript (17th September 2010) p.10.
The relevance of the letter, and other evidence to which I will refer shortly, relates to the issue of any risk to the children being in their Father’s care.
In my view, the letter falls within the exception in s.131(2)(g) of the Evidence Act, and within the comments of Emmett J in Brown’s case to which I have referred. It should be admitted into evidence and the Court take cognisance of it as appropriate. And, in any event, the contents of the letter is of a piece, indeed consistent, with the other matters to which I have referred, especially the entering into consent orders on more than one occasion, which provide for the children to spend time with their Father.
Discussion & Resolution
The issue of the care of the children while with their Father is, of course, directly linked to the issue of whether the children should be returned to him to live pending the final determination of the issues at the trial, which is currently scheduled for 3rd and 4th of March 2011.
In my view the following facts or factors militate against the contention that the children are at risk in their Father’s care:
a)There is material produced under subpoena that confirms that the Mother intended to enrol the children in school in Canberra in 2010. Presumably she would not have done so had there been any concerns about their welfare remaining in Canberra – which also assumes that they would have been spending regular time with their Father while living in Canberra.
b)Consent orders were made on 21st June 2010. Again, presumably those orders were signed knowing the living situation for the children that would result, namely, that they would be living regularly and frequently with their Father. There is no suggestion that the consent orders were entered into under duress.
c)Thirdly, relying upon s.131(2)(g) of the Evidence Act, in my view, the letter of 13th September 2010 is of particular relevance because it proposes that the children spend regular and significant time with their Father, thereby confirming that the Mother continues to have no concerns about the children’s welfare while in the Father’s care.
d)Fourthly, in the report from OCYFS there is independent confirmation from Care and Protection Services on two separate occasions (in May and July) that the children were not considered to be at risk while in the care of their Father and/or, not insignificantly, while in the care of ‘the Father and his partner.’ The significance of the latter comment in the OCYFS Report is because there are contentions that the Father’s partner, herself, poses some risk to the children.
e)Fifthly, in the course of the interim hearing, the Court was advised that the parties were negotiating further orders, obviously by consent, which related to the then imminent school holidays whereby the children were to spend significant time with their Father. The orders agreed to are referred to earlier in these reasons.
f)Sixthly, as the ICL pointed out, most of the matters raised as concerns by the Mother, pre-date the Consent orders of June 2010.[8]
[8] See Transcript (17th September 2010) pp.20-21. Indeed, in her affidavit filed on 18th June 2010, par.67, Ms Magoon gives a number of reasons for her return to Canberra in December 2009. Among them are that it was in the children’s best interests to be closer to family members, and that she (Ms Magoon) “had a much bigger support network in Canberra.” She also stated that she struggled financially in Brisbane.
In the light of the evidence currently before the Court as just outlined, I do not see that the Mother’s concerns about the children living with the Father, or spending time with him, or with his partner, can be sustained.
It also seems to be clear on all material currently before the Court, that, frequently, the Mother conflates issues of violence (domestic or otherwise) as between herself and the Father, on the one hand, and on the other, alleged risks in relation to the children being in the care of their Father.[9]
[9] It is not contested that Mr Magoon has been committed for trial in Queensland in relation to various charges that relate to an [alleged] assault on Ms Magoon’s boyfriend. Mr Magoon remains on bail. See, for example, Mr Magoon’s affidavit, filed on 6th May 2010, pars.37-40. See also Ms Magoon’s affidavit, filed on 18th June 2010, pars.83 ff. I was informed by the parties on 17th September that it was likely that Mr Magoon’s proceedings were unlikely to be heard for another 18 months or so.
The objects of Act in s.60B(1) make plain the importance of the Court to balance a child’s right to spend time with their parents with the need to protect a child from ‘physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.’[10]
[10] See further the “twin pillars” comments by Brown J in Mazorski v Albright (2008) 37 Fam LR 518 at [3] – [6].
Other sections in Part VII of the Act similarly highlight and enjoin the Court assiduously to consider the best interests of the child and the protective responsibilities of the Court.[11]
[11] See, for example, ss.60CC(2)(a) & (b); s.60CC(3)(c), (i), (j), (k); s.60CC(4); s.60CC(4A); s.60K.
In the light of my interim findings in relation to the risk assessment in relation to the children, vis-à-vis their Father it is important now to consider the important principles set out by Boland J in Morgan v Miles,[12] in the light of (a) the June consent orders and (b) the Mother’s removal of the children from Canberra to live with her shortly after they were signed.
[12] Morgan v Miles (2008) 38 Fam LR 275. In this appeal, her Honour was sitting as the Full Court.
In the first instance, it is important to highlight her Honour’s insistence, at [74], on the Act providing for “the careful exercise of a structured discretion to determine the appropriate order to be made.”[13]
[13] See also similar remarks at 38 Fam LR at [55].
With respect, logically and forcefully, her Honour then confirmed, at [77], the responsibility on parents under s.65DAC ‘to make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent.’ Her Honour continued: “The operation of s.65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.”
For current purposes, in my view it is sufficient to note that, at [79], Boland J set out in some detail the matters to consider in determining whether a relocation should occur. I will not repeat them here.
Later in her Honour’s judgment, Boland J highlighted the usual practice of courts in allowing a relocation following an interim hearing. Rather, as her Honour made plain, such matters are best left for determination at a final hearing.[14]
[14] See 38 Fam LR at [83], [84], [86] & [87].
Applying the principles set out by her Honour, to the facts of this case, and in particular that, so soon after the consent orders were signed, the Mother unilaterally removed the children from their Father’s care in Canberra – with whom they have lived for the previous 6 months – it seems to me a clear case that the children should be returned to their Father. The issue of relocation , if pressed, should be determined only at the final hearing, which is now only a few months away.
I note that given the date of these reasons and orders it is likely that the children would have been spending time with their Father in any event during the holidays. As well, with a hearing date so relatively soon into the new year the risk of any major disruption to any of the parties and or the children must be balanced against the benefit of a final hearing that is very close at hand.
For the above reasons, the children are to be returned to live with their Father in Canberra at the earliest agreed time. In the absence of agreement, they should be returned within 14 days.
Finally, in the absence of agreement, the Consent Orders made in June, and as relevantly amended in September, shall continue to apply.
In the circumstances and facts outlined in these reasons, and given that final hearing dates have been fixed, it is otiose to consider the applications made, now quite some months ago, to transfer the proceedings either to (a) the Brisbane registry of this Court, or (b) to the Family Court, or (c) to the Magellan List of the Family Court.
In my view, it is in the best interests of the children (and no less so for the parents as well) that the matter be resolved at the earliest possible time. That will occur in this Court in March next year.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 10th December 2010
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