Mantle and Curtis

[2017] FCCA 856

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANTLE & CURTIS [2017] FCCA 856

Catchwords:
FAMILY LAW – Parenting – recovery order application which would result in children being removed from the mother’s primary care in Brisbane and placed with the father in (omitted) – serious allegations of risk but no recent evidence – matter transferred to Brisbane registry – Independent Children’s Lawyer appointed.

Legislation:

Family Law Act 1975, s.100B

Cases cited:

Redman & Redman [2014] FamCAFC 155

Applicant: MR MANTLE

Respondent: MS CURTIS

File Number: BRC 11205 of 2011

Judgment of: Judge Harland

Hearing date: 21 April 2017

Date of Last Submission: 21 April 2017

Delivered at: Melbourne

Delivered on: 21 April 2017

REPRESENTATION

Counsel for the Applicant: Ms Hession

Solicitors for the Applicant: MIR Lawyers

The Respondent: Self-represented

ORDERS

1. The matter be transferred to the Brisbane Registry of the Federal Circuit Court of Australia with an adjourned date to be advised.

2. The father be granted leave to file an amended contravention application on or before 19 May 2017.

3. The children X born (omitted) 1999, Y born (omitted) 2008, and Z born (omitted) 2003 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 upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Brisbane.

AND THE COURT REQUESTS THAT:

1. The matter be listed in the Brisbane Registry as early as practicable.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

BRC 11205 of 2011

MR MANTLE

Applicant

And

MS CURTIS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the father seeking issue of a recovery order of two children:  Z born (omitted) 2003 (“Z”), and Y born (omitted) 2008 (“Y”).  The effect of that order would be removing the children from their home in Brisbane and having them live with the father in (omitted) pending further orders of the Court.

3. It is necessary to set out the history of this matter.  There were Court proceedings in Brisbane which ended in 2014 when property orders were made.  There are also final parenting orders in place, which were made on 25 July 2013.  The parties have four children.  The oldest child, Ms H who is over the age of 18.  The second-oldest child, X (“X”), will be 18 in a few weeks’ time. The application only concerns the younger two children.

4. The orders made on 25 July 2013 provided for the mother to have sole parental responsibility for the children subject to her being required to notify the father of decisions she proposed to make and invite him to express his views.  Orders provided for X to spend time with her father in accordance with her wishes, and for the younger two children to spend time with the father for half the Queensland gazetted school holidays and by telephone at all other reasonable times.  Other parenting orders were also made that day.

5. The current round of proceedings were commenced when the father filed a contravention application.  He filed that application without the assistance of lawyers, and the application as drafted has no prospect of success.  He indicates that he wishes to amend that application.  I will grant him leave to file an amended contravention application, and he will need to do that, and I will give him 28 days to do so.

6. That contravention application was returnable before Judge Williams in Melbourne on 1 February 2017. She made orders listing the matter in the Mildura sittings for the week commencing 27 March 2017.  The orders also indicated that on the next occasion the father would seek to rely on an affidavit of a witness under the age of 18, being X, and also made orders for the mother to file material and to provide a telephone number for her attendance on the next occasion, otherwise the matter could proceed in her absence.

7. In his affidavit in support of the contravention application, the father raises issues with respect to not being able to spend time with the children, but also raises risk issues.  He also relied on an affidavit filed – sworn by X, but that affidavit was, in fact, sworn in November 2015. 

8. The father then filed the application in a case seeking a recovery order on 24 March 2017; in effect, a working date prior to the next return date on 27 March 2017, and that application was adjourned to later in that sitting week before me on 30 March 2017, as the mother had only been served on the Saturday.  The application in a case and affidavit in support were prepared with the assistance of lawyers.  The father says in that affidavit that he is in remission after having been diagnosed with melanoma skin cancer, and he had undergone radiation therapy and also surgeries.  He speaks about the difficulties he had in spending time with the children in accordance with the final orders, and says he has not seen the children since Easter 2016. 

9. The father says in his affidavit that the older two children moved out of the mother’s home because of ongoing arguments with her, and says that his older children support the younger two children coming to live with him. He sought to rely on an affidavit of X, who as I indicated is not 18, which triggers s.100B of the Family Law Act 1975 (Cth) (“Family Law Act”).  That affidavit is also old, having been sworn on 9 November 2015. 

10. When the matter was before me on 30 March, I deferred the issue of whether or not that affidavit should be relied upon, given the provisions in s.101B of the Family Law Act.  I am going to mark that affidavit as exhibit A so it is not lost.  In my view, given the age of both affidavits of the older children being over a year old, it is not necessary to rule on that issue, because they do not advance the issues in terms of whether or not there are sufficient current evidence of risk for me to make the orders that the father seeks, which are drastic.

11. The concerns that the father says the older children have raised with him and concerns that he has includes an allegation that the mother’s partner physically assaulted X in 2014;  that the mother’s partner has been violent towards all of the children and the mother on other occasions and the police were called;  that the mother abuses alcohol until she passes out and leaves the children unsupervised;  that Y had nits and the mother shaved her head, The mother responded to the last allegation in her affidavit responding to the contravention saying that she did do that and shaved her head as well in solidarity, saying that she said nits were a big problem.

12. The father also alleges that the mother is verbally abusive and that these matters have been the source of ongoing interventions with the Department of Communities, Child Safety and Disability Services (“the Queensland Department”); that the mother does not provide regular food for the children and that she drugs Z and X with prescription medication so the children can sleep, and that Z and Y are smacked by the mother’s partner.  He also alleges that all the girls are told by the mother that one day they will come home from school and will not have anywhere to live. 

13. He expresses concerns about the allegations that the two older children have made about family violence and neglect occurring in the mother’s home and the lack of supervision.  He says that these matters have been reported to the Queensland Department, and that X has also reported matters to the Queensland Police, and it is based on these concerns that he seeks the recovery orders to issue.  He says he lives in a three-bedroom home in (omitted) and is able to accommodate the children and has made inquiries about schools for the children.

14. The matter was listed before me today to enable subpoenas to issue and be returnable for today’s hearing to Queensland Police and also to the Queensland Department.  The Queensland Police have responded to the subpoena and counsel appearing for the father says that that material is consistent with the allegations made with respect to events happening in 2014 but do not raise more recent material.  Unfortunately, the Queensland Department has not responded to the subpoena as yet, and have not given an indication as to when they will be able to respond to that subpoena, and in those circumstances, it is necessary to deal with the interim issues today.

15. Both parties have travelled far to appear in Court today.  The mother appears in person.  The mother has filed a response and affidavit.  It is not entirely clear from the response exactly what orders she seeks, though she does indicate that the final orders made in 2013 need to be changed.  The mother has filed an affidavit in support, in which she denies the allegations that she is addicted to prescription drugs and denies having any alcohol problems.  She says that she for the last six years has worked for (employer omitted) as a (occupation omitted) and is subjected to random alcohol and drug testing. 

16. She denies that she and her partner are abusive.  She confirms that the older children do not live in her home and expresses concerns about the father’s mental and physical wellbeing, and says that she only wants the father to spend time with the children in Queensland because of her concerns. 

17. I accept that the allegations that the father makes of risk to the children are serious, but as I expressed on the previous occasion, my concern is that there is no material addressing recent incidents of risk.  I accept that the father says he was not able to bring the application earlier because of his health, but that does not change the fact that at this stage, without material from the department, the Court is dealing with allegations that are well over a year or more old. 

18. I am not satisfied that there is evidence sufficient to justify making an order for recovery of the children which would have the effect of removing them from Brisbane to (omitted), having them living with the father when they have not done so for several years and have them change schools.  It is, in effect, similar to an effect of an interim relocation order, and if there were current allegations of risk that raised concerns that the children would be at unacceptable risk if they remained in their home, then that, of course, may be an appropriate outcome.

19. It is well established by several Full Court of the Family Court authorities including Redman & Redman [2014] FamCAFC 155 that whilst the Court cannot make findings of contested fact on an interim basis, it cannot ignore serious allegations of risk.

20. One of the things that makes this case difficult is the distance between the parties and the fact that we are dealing with interstate issues.  Whilst the Federal Circuit Court of Australia, the Federal Court of Australia, the Family Court of Australia and the Family Law Act is federal jurisdiction, the police and Child Protection Services are state-based, as are the Legal Aid services that appoint independent children’s lawyers.  In my view, the best way of addressing this matter quickly and obtaining up-to-date information concerning the children’s welfare is to transfer the matter to Brisbane where an independent children’s lawyer can be appointed who can talk to the children and also gather other evidence to put before the Court.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 28 April 2017