Manahan & Falsberg

[2020] FCCA 3626

FEDERAL CIRCUIT COURT OF AUSTRALIA

Manahan & Falsberg [2020] FCCA 3626

File number:

MLC 13992 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

24 December 2020

Catchwords:

FAMILY LAW – STAY APPLICATION ­ Interim parenting – relocation –  where parents moved interstate with children – where orders were previously made by registrar for the parents to return children to paternal grandmother’s care – where parents filed for stay of proceedings – stay application is granted – orders made

Legislation:

Family Law Act 1975 (Cth) ss. 60CA, 60CC

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Cantrell & North [2019] FLC ¶93-921

House v R [1936] HCA 40; (1936) 55 CLR 449

Gronow v Gronow [1979] FLC ¶90-716

Number of paragraphs:

30

Date of hearing:

24 December 2020

Place:

Melbourne

Counsel for the Applicant:

Mr N Eidelson

Solicitor for the Applicant:

Lampe Family Law

Solicitor for the Respondents:

Ms L Armstrong of Best Wilson Buckley Family Law

ORDERS

MLC 13992 of 2020

BETWEEN:

MS MANAHAN

Applicant

AND:

MR FALSBERG

First Respondent

MS PELGRAM

Second Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	24 DECEMBER 2020

THE COURT ORDERS THAT:

1.Until further Order paragraphs 1, 2 and 3 of the Orders of Senior Registrar Hoult on 22 December 2020 be and are stayed.

2.The listing on 8 January 2021 before Senior Registrar Hoult is vacated.

3.The application for review of a Registrar's decision is adjourned to 25 January 2021 at 10.00am for interim defended hearing.

4.This stay order is granted on the following conditions, until further Order:

(a)The Applicants for this stay ("the parents") and each of them, be and are hereby restrained from consuming any illicit drugs, particularly marijuana;

(b)The parents and each of them, be and are hereby restrained from any form of physical discipline of the children X born in 2019 and Y born in 2020 ("the children");

(c)The children live with the parents and reside in and sleep at the home of Ms B ("the Maternal Grandmother") at C Street, Suburb D QLD and the Maternal Grandmother be in substantial attendance;

(d)The parties do all acts and things to facilitate telephone and/or video call time (including FaceTime) between the Respondent Paternal Grandmother and the children frequently by agreement, and in default of agreement each Tuesday and Friday between 6.00pm and 6.15pm Queensland time;

(e)The parents and each of them, be and are hereby restrained from smoking cigarettes in the presence of the children or either of them; and

(f)The parents and each of them comply with any directions from any medical practitioners relating to his or her health, including mental health and the health of the children; and

(g)The parents and each of them do all acts and things to cause and ensure that each of them, the Maternal Grandmother and the children are Covid tested as soon as practicable.

5.The children be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children's Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings.

6.The Independent Children's Lawyer shall have leave to inspect and copy subpoenaed documents produced to the Court.

7.Pursuant to section 69ZW of the Family Law Act 1975 it is requested the Department of Health & Human Services provide to the Court the following documents and information in relation to the children and MR FALSBERG born in 1998, MS PELGRAM born in 2001, MS B (date of birth unknown) and MS MANAHAN born in 1964 (who also may have been known as MS MANAHAN) :

(a)any notifications to the Department of Health & Human Services of suspected abuse of the children to whom the proceedings relate or of suspected family violence affecting the children including but not limited to any intake reports;

(b)any assessments of the Department of Health & Humans Services' of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;

(c)any reports commissioned by the Department of Health & Humans Services in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children's Court; and

(d)in the event the Department of Health & Human Services have an ongoing investigation in relation to the children to whom the proceedings relate, any recommendations for the future arrangements of the children taking into account the orders sought by the parties in these proceedings.

8.Pursuant to s.69ZW of the Family Law Act 1975, within 21 days of the date hereof, the Chief Executive Officer of the Department of Child Safety, Youth and Women in Queensland ("the Chief Executive Officer") provide the Court with the following documents held by the Department in relation to the children and MR FALSBERG born in 1998, MS PELGRAM born in 2001, MS B (date of birth unknown) and MS MANAHAN born in 1964 (who also may have been known as MS MANAHAN):

(a)Any notifications to the Department of suspected child abuse of the children or of suspected family violence affecting the children;

(b)Any assessments/reports by the Department of investigations into any notification referred to above;

(c)Any reports commissioned by the Department in the course of investigating a notification

(d)For the purposes of  this order the documents should include but not be limited to:

(i)Child files;

(ii)Family files;

(iii)Audio tapes, video tapes, photographs;

(iv)Assessments, records and/or reports prepared by departmental staff (including but not limited to child welfare officers), counsellors, social workers, psychologists psychiatrists, therapists (including but not limited to speech therapists and occupational therapists), educational specialists, general practitioners and hospitals;

(v)Any other departmental files, documents, notes, reports, records, files, memoranda, books and correspondence;

9.Nothing in this Order shall require the Chief Executive Officer to provide the Court with:

(a)Documents not in the possession or under the control of the Department; and

(b)Parts of documents or information that include the identity of the person who made the notification or provided the information;

10.The Chief Executive Officer is at liberty to edit any document provided under these orders to prevent disclosure of the identity of any person who made a notification or provided information to the department relevant to the welfare of the child/children.

11.It shall be sufficient compliance with these Orders if the documents referred to are forwarded by prepaid post marked "private and confidential" addressed to the Registrar of the Federal Circuit Court of Australia in Brisbane, 119 North Quay, Brisbane (GPO Box 9991, BRISBANE QLD 4000).

12.In the event that the Chief Executive Officer objects to any party inspecting any or all of the documents, he/she or their nominee shall forward with the documents a letter setting out the objection.  If no objection is received, the Court will proceed on the assumption that the Chief Executive Officer has no objection to the documents being inspected by the parties (including the Independent Children's Lawyer) and/or their legal representatives.

13.The Chief Executive Officer shall have liberty to apply in relation to these orders (including but not limited to any objection to the production of some or all of the documents) on the giving of two (2) days notice to the parties and by contacting the Associate of the Judge who made the Order.  Leave may be requested to appear at the mention by telephone.

14.The Independent Children's Lawyer (if appointed) shall have leave to inspect and copy the documents and to provide any expert with a copy of the documents.

15.The parties may apply for leave to inspect the documents by addressing the request in writing to the Associate of the presiding Judge. They must provide a copy of the request to the other parties. The application may be dealt with in Chambers.

16.The parties shall not issue a subpoena to the Department of Child Safety, Youth and Women without leave of the Court.

AND THE COURT NOTES THAT:

A.The appointment of the Independent Children's Lawyer is made in urgent circumstances and that the appearance of the Independent Children's Lawyer on the return date of 25 January 2021 will be of significant assistance to the Court.

B.The hearing, including these Orders were made within the hearing and presence of the Maternal Grandmother who has agreed to be bound by these Orders and to immediately notify the Paternal Grandmother in the event she observes or becomes aware of any breach of these Orders by the parents.

C.The Paternal Grandmother has advised of an urgent Medicine Recall has been issued for Infants Friend Oral Liquid Bottle 100ml, and the Notice is attached hereto and marked 'A'.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 these particulars are included in these orders.

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. This is an application to stay an order pending the hearing of a review.  The application for a stay was filed urgently only on 23 December 2020.  The stay application was in regard to an order of Senior Registrar Hoult which had been made the day before on 22 December 2020.

2. I will not leave the parties hanging.  I will tell them now that I do propose to make the stay and I propose to make it on conditions and I am entitled or I have the power and the discretion to impose conditions in regard to the making of that stay order, and I am now giving my reasons for why I will make that stay.

3. I will appoint an Independent Children’s Lawyer.  I might just put that on hold at the moment.  I will seek the assistance of Ms Armstrong and Mr Eidelson about whether that's even possible in the circumstances of that will relate to the residence of the children, whether that is a Victorian or a Queensland independent children's lawyer.  I now continue my reasons for making this order. 

4. The circumstances that the parties find themselves in is that Mr Falsberg (‘the Father’) is the father of the children X, born in 2019 and Y born in 2020 (‘the children’) and he is 22 years of age.  The children's mother Ms Pelgram (‘the Mother’) is 19 years of age.  They commenced a relationship is 2018 at a time when they were living in Queensland.  The Applicant Ms Manahan, (‘the Paternal Grandmother’) and self-evidently mother of the respondent Father, asserts that the parents were at about that time “kicked out” of the home of Ms B (‘the Maternal Grandmother’) where they were living at that time.

5. It is common ground that in 2018, the parents (at this stage without children), came to live at the Paternal Grandmother's home and it would appear to me to have been accommodated in that home thereafter.  What is in dispute is whether, from the time they moved in, the parents effectively paid their own way and after the children were born, paid the way for the children.

6. It is the Paternal Grandmother's case that the parents, and the Mother in particular showed very little interest or parental responsibility towards X when he was born and indeed, the same in regard to Y.  Her allegation is that she became in substance, together with her daughter, Ms K, the primary carers, firstly for X and then for Y, after Y's birth.  The parents' position is that for a substantial period of this time and I do not have the precise details, the Father was in full-time employment including shift work, as a forklift driver and the Mother was employed in a supermarket. 

7. That is a matter that I find very much to their credit, that notwithstanding they had a young child or children, they were able to engage in employment.  Of course, they were only able to engage in that employment because they had the assistance of the Paternal Grandmother to care for the children.  They allege and it has not yet been addressed in the Paternal Grandmother's material is that the Paternal Grandmother's daughter, Ms K, was on many occasions the paid babysitter, to babysit the children whilst they were at work.  The Paternal Grandmother's position is that she and her daughter Ms K essentially became the carers first of all of X and then of Y and point to matters such as the daughter Ms K taking the children to medical appointments.

8. The parent's, on the one hand, assert that they were, at least on occasions at work and also assert to some limitations in regard to their ability to communicate with medical practitioners and professionals in general.  In that regard, I cannot make a judgment about that, but I do note that the affidavits that were filed by the Mother and the Father when they were litigants in person are articulate and show an ability to communicate.  I do not know who or to what extent they were assisted in those affidavits. 

9. The Paternal Grandmother alleges that what she is concerned about is not only the issue of the fact that the children would effectively be separated from what was their primary carers unilaterally and abruptly, but that there are real risks to the welfare of the children.  And she points to what she says is a threat by the Mother to smother the child when a few weeks old.  She points to the issue of a concern of mental health issues on the part of the Mother in particular, but also the Father.  She points to the issue of the parents simply not caring and in substance, alleges that these children did not bond with either of these parents or form an attachment in the psychological sense of that word.  She alleges that they were somewhat cavalierly prepared to separate the siblings.  She alleges that the Mother in particular was cavalier about the effect of her smoking marijuana would have on the children. 

10. The background to her and her daughter becoming the primary carers to the children or at least her becoming the primary carer, assisted by her daughter Ms K, was that the parents were simply not coping and in substance she alleges that the children were settled and safe in her care.  The parents' case is that there was, in occupation in that home, the Paternal Grandmother, Ms K, the two parents, the child X, and then after Y was born (and I note Y is only four and a half months old) a toxic atmosphere where the Mother in particular was subject to the controlling behaviour and abuse in a very wide sense of that word (including constant descriptions and putting down of the Mother as an unfit mother) as being behind the substantial involvement of the Paternal Grandmother and the daughter Ms K in the care of these children.

11. They point to what they allege is the very poor health of the Paternal Grandmother and point to a range of medical symptoms, the substance of which would indicate, that if correct, the Paternal Grandmother would simply not be able to physically care for these children.  They point to the fact that the daughter, Ms K, is in fact, they say, from the government point of view, the carer for the Paternal Grandmother, such is her health.  Further that the daughter Ms K, they say, is a habitual marijuana smoker and the Mother says that she smoked marijuana in the company of Ms K.  They say that they both worked, or at least both worked at times and hence relied upon the assistance of the daughter Ms K, in particular, who they paid.  They point to the circumstance that they say is remarkable that without their notice in October 2020, the Paternal Grandmother, though they say requiring someone else to be her carer, applied for Centrelink benefits as the carer of these two children without their knowledge, and that they learned of this when reading the affidavit material.

12. The other matters that are raised with me is the circumstance that the parents have no finances.  They are not yet registered for Centrelink.  They have no money.  I only go to those issues to the extent that I am required by the decision of the test on a stay application of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton”) to consider the best interests of the children and of course the best interests of the children are driven by the requirements of section 60CC of the Family Law Act 1975 (Cth) (‘the Act’). I am also going to those matters because I am required to have some preliminary assessment of the strength of the proposed appeal. In this case, of course, this is not an appeal in the ordinary and conventional sense of an appeal: this appeal will be a hearing de novo.

13. I need to point out that I am not hearing the application for review.  Hence I am not determining this matter.  I note that the matters that I am required to take into account are set out conveniently in eleven dot points in paragraph [18] of Aldridge & Keaton.  I have, for convenience, adopted the approval of those principles of Aldridge J in the matter of Cantrell & North [2019] FLC ¶93-921. There are a number of authorities there referred to which do not need to be repeated on this interim hearing. However, it is there set out that the principles relevant to the matter of a stay include the following dot points:

    ·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

    ·a person who has obtained a judgment is entitled to the benefit of that judgment;

    ·a person who has obtained a judgment is entitled to presume the judgment is correct;

    ·the mere filing of an appeal is insufficient to grant a stay;

    ·the bona fides of the applicant;

    ·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

    ·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

    ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

    ·the desirability of limiting the frequency of any change in a child’s living arrangements;

    ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

    ·the best interests of the child the subject of the proceedings are a significant consideration.

1. I must also point out one of the principles is that ordinarily, the judge or judicial officer that heard the matter should, if available, hear the stay application.  I have made inquiries and Senior Registrar Hoult is not available this day to hear this application, and hence it is necessary that I hear it.  I also note that the orders of the Senior Registrar when the matter was adjourned back to him on 8 January. 

2. The orders that the Senior Registrar made on 22 December 2020 are:

   THE COURT ORDERS UNTIL FURTHER ORDER

   1.That the children X born in 2019 and Y born in 2020 (“the children”) live with the Applicant paternal grandmother.

   THE COURT ORDERS

   2.That both the First respondent father and Second respondent mother do all acts and things to return the children to the paternal grandmother’s residence by no later than Monday 28 December 2020.

   3.That in the event that the children have not been returned to the Applicant paternal grandmother’s residence by 4pm on 28 December 2020, then the Applicant paternal grandmother have leave to apply for a recovery order.

   4.That all extant applications be adjourned to the Senior Registrar’s Duty List on 4:00pm on 8 January 2020.

   5.That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

3. It must be noted that in regard to a stay application, the best interests of the children are not the paramount consideration. Section 60CA of the Act that determines in making a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. A stay application is of itself not a parenting order, as I understand it, and hence, the test set out in Aldridge & Keaton arises.  However, the best interests of the children weigh very heavily upon me, and whilst not the paramount consideration, are a signification consideration, and in my view, in this application, a very weighty and significant consideration.

4. I have considered all of the matters in section 60CC(3) of the Act to the extent that they are relevant, and in particular, the issue of:

   (d)the likely effect of changes in the child's circumstances…

   and in addition:

   (i)the attitude to the child and the responsibilities of parenthood, demonstrated by each of the child's parents;

   and indeed, the Paternal Grandmother.

5. There are no family violence orders yet, but there is an application for a family violence order by the parents against the Paternal Grandmother.

6. The matters that weigh most significantly with me is the circumstance that the Court is able to facilitate the review of this decision on or about 11 January.  If not 11 January, very soon thereafter, and that will depend upon the convenience and the weight of the matters in Judge Mercuri's list.

7. The circumstance that I am not hearing the application that is, the application for review, and I am hearing a stay application, is a matter of significance.  It is also of significance that the appeal is not an orthodox or, what I would say, traditional appeal where the tests whether House v R [1936] HCA 40; (1936) 55 CLR 449 or Gronow v Gronow [1979] FLC ¶90-716 and that line of authorities from the High Court need to be looked at. For this appeal to be successful, it merely means that upon a re-hearing and considering all of the matters (where the judge will act in determining the best interests of the children and section 60CA of the Act will apply: the paramount consideration will be the best interests of the children), what would happen.

8. Hence, I do take account of Mr Eidelson's argument that there is no new material, or very little new material, and there is if not new material, however, there is some further clarity to allegations that were made very briefly in the what I will call in-person material filed, and that relates to the Paternal Grandmother's background and her involvement with Child Protection authorities, and the background of raising the children, including the Father in this matter.

9. That is a matter that weighs heavily with me, combined with the undesirability of limiting frequency of change in the children's living arrangements and the balance of convenience.  It will be enormously difficult for the parents to comply with the order and then enormously difficult were they to comply to then move back to Queensland.

10. I should indicate that the matter that I place the least weight upon, and, in fact, very little weight, is the allegations at paragraphs [4] to [8] of the Father's affidavit where essentially criticisms of the Senior Registrar's handling of the matter are made.  I do not have to decide it, but I do note that I may well myself have made the very same decision, and the real difficulty of dealing with matters where there has been a substantial relocation of adults involved in children's lives without consulting the other parties who may be or should be involved in the children's lives. 

11. However, in a preliminary assessment of the strength of the proposed appeal, the reality is that it is of some substance.  It is not a nonsense or give-it-a-go appeal.  It would have been a difficult decision for the Senior Registrar.  It will be a difficult decision for the judge that hears the review.  However, it is not in these children's interests to travel down and then travel back again in the week of the 11 January with all the difficulty that that creates.  In addition, that also relates to the issue of the balance of convenience.

12. Very candidly, Mr Eidelson has alerted me to the real difficulties with the COVID-19 issues, and that he is instructed, and I accept accurately and I do not think I need to check it myself, that in the circumstances of the recent outbreak of COVID-19 in what was the Region L, New South Wales area when I looked at the news yesterday, now relates to Sydney, including City M, and parties or anyone who has been through City M or Sydney needs to be COVID-19 tested.  It is clear in this matter that the parents assert that they have travelled, as I understand it, through City M to get to Queensland.  It appears to me that the applicable directions (and I do not doubt what the Paternal Grandmother says about them) would require the parents and the children to be COVID-19 tested at this point.  I will request that they do all acts and things to ensure that each of the parents and the children, and indeed the Maternal Grandmother, who will be in substantial attendance, undertake COVID-19 testing, and that will be an additional order, and that will be as soon as practical.

13. I note that to ease the inconvenience on the parents who simply appear to me to have a motor car and little else, the Paternal Grandmother would fly to Queensland.  Somehow she would rustle up the money to limit that burden, and I do take that into account, but the combined uncertainty about the COVID-19 guidelines, the uncertainty about the impact on the Paternal Grandmother herself in the event that there is a risk of COVID-19 being contracted by any of the parents or the children and contact with her, the issues relating to quarantine and the uncertainty relating to that when these matters are changing, unfortunately, on a daily basis is also one of the matters that I take into account.

14. In my view, going through the dot point tests that the law asserts that I should take into account, I do find that the applicant for the review and the stay, that is, the parents, have established a proper basis for the stay.  I do acknowledge that the applicant is entitled to the benefit of that judgment and entitled to presume it is correct.  I do not question the bona fides of the parents in this matter.  I cannot see why they would go to all this trouble, stress and grief of cranking up this application in a very short time, albeit with the assistance of what must be the highly competent and highly efficient offices of the parent's solicitors, Best Wilson Buckley Family Law, if they were not genuinely and bona fide committed to the welfare of these children as parents.

15. I have endeavoured to grant this stay on terms that are fair to all parties, including taking into account what I also regard as the genuine concerns of the Paternal Grandmother.  I have taken into account the issue of the risk of an appeal/review may be rendered nugatory, in the sense that if the parents travel down here, it appears to me difficult to see how they would manage to organise accommodation and get back.  The alternative would be that there would need to be a direction for the Paternal Grandmother to return the child to Queensland following the hearing if the appeal is successful, and that is a matter that I take into account.

16. I take into account the desirability of limiting frequent changes of the children's living arrangements. As noted, the time that this stay will operate until the hearing of the review is relatively short and is in the order of about three weeks. I have taken into account the best interests of the children and including the considerations of section 60CC of the Act, including section 60CC(2)(a) and (b), section 60CC(2A) and the matters to the extent that they are relevant under section 60CC(3).

17. After delivering these reasons and now with further discussion with counsel and because of the significance of Child Protection authorities' information where there is a significant risk of child abuse being alleged, and the circumstance where the earliest times that the Court could deal with the review would mean that that information would probably not be available, it has now been determined that I will adjourn the hearing of the review before me to January 25 2021 at 10.00am. I will make the usual section 69ZW order in regard to the Victorian authorities and the Queensland authorities in regard to the parties and the Maternal Grandmother.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       12 February 2021