Major and Livingstone

[2016] FCCA 3235

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAJOR & LIVINGSTONE [2016] FCCA 3235

Catchwords:
FAMILY LAW – Interim proceeding relating to child aged fifteen months – unilateral relocation of child by father and paternal grandmother from Adelaide to (omitted) – all parties share an Indigenous background – both parties allege that the other has serious substance abuse issues – difficulties arising at interim hearing stage – extreme urgency – best interests – unilaterally imposed arrangements kept in place pending limited family assessment.

Legislation:

Family Law Act 1975, s.11F

Applicant: MS MAJOR

Respondent: MR LIVINGSTONE

File Number: ADC 3606 of 2016

Judgment of: Judge Brown

Hearing date: 2 December 2016

Date of Last Submission: 2 December 2016

Delivered at: Adelaide

Delivered on: 2 December 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Lewis

Solicitors for the Applicant: Legal Services Commission of South Australia

Counsel for the Respondent: Ms Craven

Solicitors for the Respondent: Aboriginal & Torres Strait Islander Legal Service

ORDERS

1. The father deliver up the child X born (omitted) 2015 to the officer in charge of the Child Dispute Resolution section of the Federal Circuit Court on level 2, 3 Angas Street, Adelaide at 9:30am on 12 January 2017.

2. Thereafter the parties and the child pursuant to section 11F of the Family Law Act attend a family dispute resolution conference at the Family Court of Australia with Mr Trevaskis on 12 January 2017 at 10:00am, to discuss the care, welfare and development of the child X born (omitted) 2015 and to include observations of each of the parties with the child.  The parties are to telephone the Registry on (omitted) to confirm their attendance.

3. Further consideration of the matter is adjourned to 12 January 2017 at 2:15pm for an interim hearing following an oral report being given to the court by Mr Trevaskis.

4. During the period of the adjournment the child X born (omitted) 2015 live with the paternal grandmother and spend time with the mother and father as may be agreed between the parties.

5. Today’s reasons be transcribed and a copy released to each of the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3606 of 2016

MS MAJOR

Applicant

And

MR LIVINGSTONE

Respondent

REASONS FOR JUDGMENT

1. Significant problems invariably arise, for all involved, when a parent of a young child moves a great distance away from the other parent with their child without proper prior consultation.  These problems include logistical ones, not only for the parents, but also for the court and any lawyers involved in the case.

2. In the current case, one party, her lawyer and the court itself are in Adelaide; whilst the other parties and their lawyer are in (omitted) Queensland.  The case has been listed against a background of extreme urgency, arising from a child of fifteen months of age being moved from Adelaide to (omitted) Queensland.  In these circumstances, it is invariably the case that the only way of conducting a complicated hearing is over the telephone.

3. That is what happened in the current matter.  Regrettably, this process was frustrated by technical problems with the line to (omitted) falling out on numerous occasions, both during the legal submissions and the delivery of judgment.  In these circumstances, it is appropriate that the orally delivered reasons be transcribed and copies released to all concerned.

4. In these proceedings, the applicant is Ms Major and the respondent is Mr Livingstone.  They are the parents of X, who was born on (omitted) 2015.  Accordingly, at the present time, X is approximately one year and three months of age. 

5. Accordingly, on any view, he is a very young and vulnerable child, who is dependent upon those who are around him to provide for his every need.  I have reason to believe, from the material so far provided to me that very significant welfare concerns arise in relation to his care.  These concerns relate to family violence and drug use.

6. Ms Major began these proceedings on 21 September 2016.  At that stage, from her perspective, there was an atmosphere of extreme urgency surrounding the matter.  At her request her application was listed urgently on 26 September 2016, some five days later. 

7. On an interim basis, she sought that her application be heard ex parte and that an order be made that Mr Livingstone deliver up X into her care.  Failing that, she wished for a recovery order to be made in respect of the child concerned. 

8. As the parties are aware, a recovery order is a significant order to be made according to the legislation.  It should only be made when the court is satisfied that it is in the best interests of a child for it to be made. 

9. A recovery order is, in effect, a direction to police officers to locate and remove children from a nominated person more often than not a parent.  It is analogous to an arrest warrant.  Necessarily it has the potential to be traumatic for the child concerned and accordingly is a remedy of last resort.

10. At the same time, Ms Major sought what is called a Commonwealth Information Order.  Through this order she wanted the court to make an order directing Centrelink to provide information about the whereabouts of both Mr Livingstone and X to the court, so that necessary documents could be provided to the father but also so that the recovery order could be affected. 

11. Fundamental to both such applications was her position that, at the time of her application she did not know where either Mr Livingstone or X were precisely and for that reason she wanted the authorities to provide what information they had and then for officers of the relevant police force go and remove the child from Mr Livingstone.

12. By way of background, Ms Major is 30 years of age.  She is an Indigenous person.  It is her evidence that she had become involved with Mr Livingstone in about the middle of 2014 and a short time later she had fallen pregnant with X. 

13. It is now her position, as I understand it, that there may be some issues of doubt surrounding whether Mr Livingstone is, in fact, X’s father.  I am not in a position to resolve those issues at this stage, although I understand it is Mr Livingstone’s position that he has no such doubts.  If the issue remains unresolved by the parties, the most logical way to sort it out is through DNA parenting testing.

14. It is further Ms Major’s position that the relationship between the parties ended in November 2015, when X was around two months of age.  At that stage the parties had been living in a unit in (omitted) in suburban Adelaide.  Prior to that time, they had lived in Central Queensland in (omitted) and, as I recall, X was born in the (omitted) Hospital, in Queensland. 

15. It is the case that Ms Major’s family and support are almost exclusively in South Australia.  On the other hand, Mr Livingstone has strong connections in Queensland, both in the (omitted)/(omitted) area, and further north in (omitted).  As I say, at least at one stage, albeit for what must have been a brief period the parties did live in Queensland.

16. The circumstances surrounding the parties’ separation are that from the mother’s perspective, in November 2015, the parties had an argument.  Ms Major asserts that during this argument, Mr Livingstone tried to throw X off a balcony. 

17. As a result police were called and the father was arrested and charged with an assault on a minor and, at the same time, Ms Major took out a family violence order against the father which included both herself and the child.  However, thereafter the mother concedes that she withdrew both the police charges and the intervention order.  How that stood with police policies in the state of South Australia at the time I am not sure. 

18. It is Mr Livingstone’s position that there is no truth to those allegations and, in fact, Ms Major fabricated them to put him in a bad light.  Thereafter, the mother’s position was that she was essentially homeless for a period of time which led to her living in emergency accommodation for several months until she got her own accommodation. 

19. Throughout much of 2016 it is the mother’s case that she was the person who was primarily responsible for looking after X.  She concedes that the father spent some time with X.  However, it is her position that Mr Livingstone was more interested in pursuing his relationship with her rather than his relationship with X.

20. It is the mother’s position that she is now pregnant and Mr Livingstone is the father of the child concerned.  Necessarily this adds a further element of complexity to what is already a complicated and muddled matter.

21. It is Ms Major’s position that, during the parties’ relationship and afterwards, Mr Livingstone was consistently violent towards her and broke property in all of the households which the parties shared together.  It is her case that X has been exposed to quite significant family violence. 

22. During the course of 2016, Mr Livingstone’s mother, whose name is Ms P, came from Queensland to spend time with the family and engage with the grandson in South Australia.  The parties agree that at the start of September 2016 Mr Livingstone was at the mother’s home.  There was an argument between the two and she left the home, leaving X behind.  She has not seen X since.  It is her case that Mr Livingstone, in conjunction with Ms P, has withheld the child from her ever since. 

23. At that stage she was fearful that Mr Livingstone and Ms P would take X out of the state where he had been for a not insignificant period of time, when compared to the length of his life up to that time.  Ms Major was right in her fears, as it is common ground that Mr Livingstone, Ms P and X are now in (omitted), in Queensland.   

24. It is also now clear that Mr Livingstone did not discuss moving X to (omitted), with Ms Major, in any way.  As such, there can be no doubt that he, in consultation with his mother, acted unilaterally of Ms Major.  Essentially, neither Mr Livingstone nor Ms P gave any thought as to how X would engage with his mother other this distance.

25. It was because of those clearly troubling circumstances that the matter was listed urgently.  On 26 September, in the absence of Mr Livingstone, I was persuaded to make an order that the father deliver X to the mother’s care and failing that a recovery order issue.  I was so persuaded because of the allegations of significant family violence; the allegation that the father used ice and cannabis; and the fact that the father was on bail.

26. At that stage, obviously, if the parents and the child had been in Adelaide, it would have been much easier to put in place some orders, which would have both satisfied safety concerns in respect of the child and also gone some way to ensure that the child had at least some level of relationship with each of his parents. 

27. Given what occurred, this outcome became impossible.  Courts generally eschew parents and those who are associated with children, particularly young children, taking things into their own hands in respect of arrangements for those children for obvious reasons – and I have already indicated this to Ms Craven – such actions just makes everything much more complicated and difficult. 

28. In any event because of the allegations of serious family violence, because there were allegations of unilateral action, and also because in her affidavit Ms Major alleged that Mr Livingstone had significant police charges against him and had issues to do with illicit drug usage, I was prepared to make the recovery order in question. 

29. I also hoped that the order might act as a brake on any plan that Mr Livingstone had to go interstate.  Anyway, it did not have that effect because it is now clear that Mr Livingstone, Ms P and X left South Australia in the early part of September.

30. The matter returned to Court on 7 October, when I made a Commonwealth information order.  Thereafter, it is the position of Ms Major and those advising her that they found it extremely difficult to serve proceedings on Mr Livingstone.  He was ultimately served at an address in (omitted) on 10 November 2016.  Thereafter, on 23 November he has filed an affidavit in response, as has his mother, Ms P. 

31. Ms P is a person who is 55 years of age.  Although initially it was Ms Major’s position that Mr Livingstone was not an Indigenous person, both Mr Livingstone and his mother identify as Indigenous citizens in their material before the court. 

32. It is Ms P’s position that she has known Ms Major for a relatively short period prior to X’s birth.  She asserts that X, Mr Livingstone, and Ms Major lived at her home in (omitted) and she was present when X was born at the (omitted) Hospital. 

33. She came to Adelaide, as I say, in the latter part of 2016.  It was her case that she has had concerns about the mother’s care of X, in both (omitted) and later in Adelaide.  In particular she was concerned that Ms Major did not attend to the child adequately and was not coping with caring for a baby.  She also alleges that she would verbally denigrate the father and struck him on a few occasions.

34. Ms P also had concerns about her son’s behaviour.  It is her case that X has exhibited behavioural issues, including hitting other children.  It is Mr Livingstone and Ms P’ position that Ms Major was not attending to the child’s care, and she was stealing food and nappies for him.  It is undisputedly the case that Mr Livingstone himself has been charged with some criminal offences relating to dishonesty.  He acknowledges that by travelling to Queensland he has absconded whilst on bail. 

35. On 24 November, the matter came back to court.  It was the submission of Ms Craven, who is Mr Livingstone’s solicitor that Ms P was really the only viable carer for X.  She was joined as a party and I was persuaded to discharge the recovery order.  Ms Major’s barrister, Mr Lewis was present but Ms Major was not.

36. Mr Lewis was concerned that his instructing solicitor did not know the whereabouts of Ms Major.  At that stage, Mr Lewis indicated that it was his understanding of Ms Major’s position was that she had not been able to go to Queensland to collect the child and the AFP had lost contact with her.  More recently again, Ms Major has conceded that there have been difficulties in her life recently, particularly that her father has been imprisoned. 

37. It is Ms P’s position, supported by Mr Livingstone, that Ms Major, both during her pregnancy and afterwards had significant issues to do with the use of methamphetamine. 

38. So, as I summarise it, the matter is extremely complicated with the parties being highly critical of the other’s level of insight into the responsibilities of being a parent for an infant of X’s age.  Yesterday, when the matter came back into court, I indicated that in my opinion, there was a need for some expert involvement in the case as a matter of urgency. 

39. Ms Craven told me that there are no resident family consultants in (omitted), but such experts came from Brisbane.  On that basis, I stood the matter over until today to see what could be done in this regard.

40. This morning Ms Craven tells me that Ms P is prepared to pay for Ms Major to come to (omitted) to undertake some sort of expert assessment but she has not told me when that could be.  It is Ms Major’s position that she herself cannot afford to get to Queensland.  Yesterday Ms P indicated that she might be able to come to Adelaide. 

41. At this stage, what I propose is that there be some brief family assessment and, on my intelligence, the earliest that that can take place is if the assessment takes place in Adelaide, which it can do on 12 January 2016. 

42. On that basis, I propose that the paternal grandmother and the father deliver the child, X, born (omitted) 2015, to the officer in charge of the child care section at the Adelaide Registry of the Federal Circuit Court at 9.30 am on 12 January 2016. 

43. Thereafter, the parties and the child concerned are to take part in a child inclusive family dispute resolution conference, which is to include observations of the child with each of the parties concerned.  Thereafter, the matter is adjourned to 12 January 2016, at 2.15 pm, for interim hearing, following the delivery of an oral report to the court by the family consultant concerned.

44. During the period of the adjournment, I will continue the orders that were made on 24 November 2016 that the child, X, born (omitted) 2015 live with the paternal grandmother, Ms P, and spend any time with the his mother as may be agreed between Ms P and the mother. 

45. I regret that I cannot come to the matter prior to the Christmas, but it is just not possible, and, from my perspective, this is the most pragmatic way to go forward.

46. I also regret that during this hearing the telephone link to Ms Craven has dropped out four times and I have had to proceed in her absence for the last portion of the hearing.

47. In these circumstances, I will direct that my associate provide Ms Craven with a copy of the orders and I will endeavour to get these brief reasons transcribed so Ms P, Mr Livingstone and Ms Craven can read them.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       15 December 2016