Mandava & Salvi

[2021] FCCA 1730

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mandava & Salvi [2021] FCCA 1730

File number:

MLC 10012 of 2012

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

8 July 2021

Catchwords:

FAMILY LAW – interim parenting – urgent application – where mother is seeking a recovery order – impact of technology – where child has travelled interstate to father – where final orders are in place for child to live with mother – where father alleges family violence – child to return to mother – orders made

Legislation:

Family Law Act 1975 (Cth), Part VII, s 60CC

Federal Circuit Court Rules 2001 (Cth), r 16.05

Cases cited:

Boyd & Sage (2020) 61 Fam LR 211

Rice & Asplund [1978] FamCAFC 128

Number of paragraphs:

19

Date of hearing:

8 July 2021

Place:

Melbourne

Solicitor for the Applicant:

Lennon Lawyers

The Respondent:

Appeared In Person

ORDERS

MLC 10012 of 2012

BETWEEN:

MS MANDAVA

Applicant

AND:

MR SALVI

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	8 JULY 2021

THE COURT ORDERS THAT:

1.Until further order the child X born in 2008, ("the child") live with the Mother, Ms Mandava, ("the Mother").

2.Until further order the child communicate via telephone or video with the Father's household between 7:00pm-7:30pm on Tuesday, Thursday and Sunday evenings with the Mother to initiate the call.

3.Save as provided in order 2 herein, the Father, his servants and agents (including his partner) be and are restrained from communicating with the child.

4.On or before 12:00pm Sunday 11 July 2021 the Father do all acts and things to cause and arrange for the child to travel from Brisbane airport to Melbourne Tullamarine airport and to notify the Mother of those travel arrangements as soon as possible.

5.Pursuant to section 68L(2) of the Family Law Act 1975 the child X born in 2008 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

6.Pursuant to section 11F of the Family Law Act 1975, the parties and the child X born in 2008 attend upon a Family Consultant of the Federal Circuit Court of Australia ("the Family Consultant") for the purposes of a Child Inclusive Conference on 29 November 2021. Interviews will be conducted at Melbourne Registry (Level 5) unless advised otherwise by Child Dispute Services.

(a)the parent with the child will be interviewed at 9.00 am; 

(b)the other parent will be interviewed at 10.00am; and

7.The Family Consultant shall have leave to inspect any subpoenaed documents.

8.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 14 December 2021 at 9:30am for Interim Defended Hearing.

9.The proceedings be adjourned to 12 September 2022 at 10:00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit Court of Australia at Melbourne.

10.The matter may be listed for a compliance mention by telephone approximately 2 weeks prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.

11.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

12.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 56 days prior to the Final Hearing.

13.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 42 days prior to the Final Hearing.

14.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 28 days prior to the Final Hearing.

15.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

16.For final hearings, parties are directed to have multiple copies of the documents they seek to tender or cross examine upon (a judge's working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness' own.  Electronic court books are encouraged.

17.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to: associate.judgeo'[email protected].

18.Liberty reserved for the parties to apply on short notice via email to: associate.judgeo'[email protected].

19.The issue of costs is reserved.

20.Order 5(b) of the final orders of 20 March 2019 be varied to permit the Father and the Mother to inform the child of Judge O'Shannessy's decision this day.

21.The parties may inspect only and the parties' legal representatives and the Independent Children's Lawyer (if appointed) may inspect and photocopy the documents produced by the Department of Children Youth Justice and Multicultural Affairs (QLD) and the document produced by Department of Families, Fairness and Housing (VIC) and the response to the Notice of Child Abuse, Family Violence or Risk filed in these proceedings.

22.The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

AND THE COURT NOTES THAT:

A.For the purposes of appointing the Independent Children's Lawyer, there is alleged emotional and physical abuse of the child.

B.The information produced is confidential and cannot be disclosed to any other person without an order of this Court.

C.Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

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 Mandava & Salvi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are my short reasons. In this matter the Applicant Mother is Ms Mandava (‘the Mother’) and the Respondent Father is Mr Salvi (‘the Father’). The question that I must decide is where X (‘the child’) is going to live between her parents' households until 14 December 2021, when this matter can be revisited with the benefit of a section 11F child inclusive conference report.

2. A child inclusive conference is as described by Bennett J in Boyd & Sage (2020) 61 Fam LR 211 at [15]:

   [15]…That assessment is a “Child Inclusive Conference” which is a meeting with a Family Consultant, the adults and the children involved in the matter and is ordered by the Court.  Lawyers are not included.  The conference is intended to give the Court an understanding of the family situation, and particularly of the child/ren’s experience…

3. I have determined that the child should return to live in her Mother's household until 14 December 2021, when where she lives will be reviewed.  In addition to that, what will be reviewed is the time that she spends and the manner in which that is to be arranged between her parents. 

4. If she is to live with the Father after 14 December 2021, the arrangements for time to be spent with her Mother will be important.  If she is to live with her Mother, the time to be spent with her Father is likely to be important to her.

5. The reality is that there were final orders made on 20 March 2019 before Judge Small, when the Mother had leave to proceed on an undefended basis.  The Father did not attend Court on that day, and he tells me that was because he had run out of money for a lawyer, and he was not aware of whether he could, and how to, represent himself.  He is now aware. 

6. However, final orders were made on 20 March 2019, and those orders provided that the Mother had the sole parental responsibility for the child, the child live with the Mother and that each party be restrained from abusing, insulting, belittling, rebuking, criticising the other and discussing the proceedings and the documents therein with the child. Otherwise, there was reserve to the Father liberty to set aside the orders pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth), provided he made such application within 28 days.

7. No such application was made, and those final orders have been in place since then.  I am to apply Part VII of the Family Law Act 1975 (Cth), and I am to act in the best interests of the child, and in doing so, I am to consider the benefit of the child having a meaningful relationship but with both of the child's parents, and the need to protect the child from physical or psychological harm. I am to give greater weight to the protection or safety aspect in the event that there is any conflict between the two.

8. In addition, additional considerations that I must consider are any views expressed by the child.  For the purpose of these proceedings, I am going to treat the circumstances of how, in cooperation with the Father and his partner, the child travelled on 30 June 2021 from Melbourne to Brisbane without the Mother's knowledge as equivalent to the child expressing a wish to live with her Father and not her Mother.

9. I also have to address the nature of the relationship between each of the child's parents.  In that regard, the child has lived her entire life in the care of her Mother, and on the Mother's evidence, prior to the events of 30 May 2021 to which I will come to and after, the child's relationship was as many children's relationships are when they are entering teenage years.   That is in conflict over the use of technology, as these things go.  Never ideal, but nonetheless, conflict with parents about access to iPhones and iPads are part and parcel of modern parenting.

10. Previous generations never had to deal with that.  Modern parents have to deal with it.  I am not going to make any comment on whether that technology is to the advantage of the child or children or their disadvantage.  However, the potential for that technology when used by another adult, including the child's other parent, to disrupt and interfere with the child's relationship with the parent with whom they live, with whom they are expected to get along with and abide by the parental authority of that parent, is almost unlimited.

11. In this case, it is common ground that there was a difficult incident relating to the child's use of technology on 30 May 2021.  It involved a conflict between the Mother and the child with, on the Mother's account, each of them striking the other in anger in a conflict over the use of technology.  The context to that was, the child had been asked to tidy her room in anticipation of home schooling the following day, and the child was unhappy with that.  The child had been informed that just like at school, from the start of the school day to the end, technology devices would be not available to the child.

12. The Mother's account is that this made the child furious.  Such is the empowerment of teenagers with technology that it is apparently commonplace, for teenagers to think that is entirely a matter for them, and the source of much conflict between parents and teenage children.  It is also common ground that following that event, the child was in regular and frequent communication with her Father and that her Father, in cooperation with his current partner and the child, arranged for the child to leave the Mother's care and travel to Queensland, unbeknown to the Mother.  The Father regards that as rescuing the child. 

13. I also need to take into account the maturity, sex, lifestyle and background of the child and either of the child's parents.  That is linked to the issue of how much weight I give to the child's views.  On an interim hearing, I will give some weight to the child's views, but it is not going to be the determinative factor.  In my view, for the child to have the responsibility in this conflictual relationship between her parents of determining where she lives and when she has contact with the other parent, is placing a burden upon her that is out of all proportion to her maturity to deal with. 

14. These are decisions that should be made by parents, not by 11, 12 or 13 year old children.  Nonetheless, I do take into account the child’s implied wishes, and it is for that reason that I regard the procedural hurdle of Rice & Asplund [1978] FamCAFC 128 as having been overcome, and indeed, the Mother's solicitor agreed that that was so. For those reasons, I am ordering the section 11F child inclusive conference on 29 November 2021 and the matter returning to me for an interim defended hearing on 14 December 2021.

15. I will also fix the matter for final hearing in September 2022 so that it does not lose its place in the queue of the cases awaiting for hearing before me in the event that the parties are unable to resolve their differences with the assistance of the section 11F process. I will review whether there should be a family report and at whose expense on 14 December 2021. I will also appoint an Independent Children's Lawyer.

16. The other most significant matter that I must have regard to is section 60CC(3)(i) of the Act, that is, the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. On this interim hearing I find that notwithstanding that the Mother had sole parental responsibility and was not compelled as a matter of law to inform the Father of the trouble that she was having with the child as at 30 May 2021, that it would have been wise for her to do so.

17. I find that the Father should have, in the child’s best interests informed the Mother of the nature of the child’s communications with him.  I am concerned and troubled whether the Father's household is able to protect the child from that household's view of the Mother.  I do not yet know whether I am concerned at the Mother's ability to protect the child from her view of the Father's household.  However, it is clear that each household has a very poor opinion of the other.

18. Whether or not either view is justified, is not a matter that I can make findings about on this interim hearing.  However, the circumstance was that at the time that the Father was arranging with the child to surreptitiously remove her from the Mother's care, there was in place a final order.  That is a matter that significantly bears upon the exercise of my discretion, and it is simply not in the child’s interests to have that responsibility thrust upon her of determining where she lives and how she leaves the household she has been living in. 

19. Notwithstanding that it was the child’s wish to live with her Father in Queensland, the circumstances did not justify the surreptitious removal of the child from her Mother's household.  Thank you. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate: 

Dated:       28 July 2021