Masek and Jefferson

[2018] FCCA 3149

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASEK & JEFFERSON [2018] FCCA 3149

Catchwords:
FAMILY LAW – Parenting – unilateral relocation – where there are allegations of illicit drug use – credibility – where the mother has not complied with court orders – relocation order.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR MASEK

Respondent: MS JEFFERSON

File Number: ADC 276 of 2016

Judgment of: Judge Young

Hearing date: 18 October 2018

Date of Last Submission: 18 October 2018

Delivered at: Darwin

Delivered on: 18 October 2018

REPRESENTATION

Counsel for the Applicant: Ms Partridge

Solicitors for the Applicant: Hume Taylor & Co

Solicitors for the Respondent: In Person

ORDERS

1. That the mother relocate the residence of the children [W] born 2007, [X] born 2001, [Y] born 2013 and [Z] born 2015 to Town A.

2. That, if the mother fails to comply with order 1 of these orders within 28 days the children do live with the father.

3. That the father be restrained and an injunction is granted restraining the father from harassing the mother by repeatedly driving past her home or taking any other steps to place the mother under observation or surveillance.

4. That immediately (either today or tomorrow) mother forthwith do undergo drug testing pursuant to the hair follicle analysis at her own expense.

5. That the mother is restrained and an injunction granted restraining the mother from cutting, straightening or dying her hair prior to the hair follicle test.

6. That the mother forward a copy of the results of such tests to the   solicitor for the other party as soon as they become available.

7. That the matter be adjourned to the 27 November 2018 at 9.30am for further consideration before Judge Young at the Federal Circuit Court of Australia, Adelaide NOTING that if the mother fails to comply with order 1 of these orders a recovery order may issue of that date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 276 of 2016

MR MASEK

Applicant

And

MS JEFFERSON

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

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. On 12 September 2017 an order was made by consent concerning four children of this relationship:  [W], who is 11; [X], who is seven;  [Y], who is five;  and [Z], who is three.  The orders were observed for a short time by the mother, who, in January of this year, unilaterally relocated from Town A to Adelaide.  The orders made in September last year provided for the children to live with the mother and spend time with the father, including school holiday time with the father.

3. The matter came before me first on 16 April on the father’s application for a Commonwealth information order.  I believe an order was made, ultimately, on 17 April for a Commonwealth information order.  It is implicit in that, of course, that, when the mother unilaterally relocated from Town A, she did so without providing the father any information about where she was going or where the children were.  There was, as I understand it, no communication with the father about those matters.   On 21 May 2018, the mother having been located, the matter came before me again.

4. The Commonwealth information order did not turn anything up but the school at which the children were enrolled was identified and the mother was subsequently served at the school, according to Ms Partridge.  As I have said, the matter came on before me on 21 May.  At that time, the mother made various allegations about the father, which she has repeated before me today.  I will try to summarise them.  In substance, she said that the father drove past her house in Town A on a regular basis in a way that she said constituted harassment and she said that, in her view, he was checking up on her.

5. She also said that one of the children, at least – I forget whether it was [X] or [W] – had come to her and said words to the effect, “Mum, what’s a needle for?” or, “What’s a needle?”  The mother asserted to me that the father must have been telling the children that she was a drug user.  I consider that something like that is quite possible as the father, in his most recent affidavit, alleges that the mother has associated with drug users.

6. On 21 May, I made orders that the mother was to file a response and affidavit in support and a notice of risk by close of business on 4 June.  The mother did not comply with that order.  She told me, however, that soon after the order of 21 May was made, she attended and applied for legal aid at the Elizabeth Legal Services Commission office.  It should be noted that that appears to be some four months after she unilaterally relocated.  She was given, she said before me today, a grant of legal aid, which I interpret to be a grant of legal aid for an assessment and the grant was for her to see Mr Dorrian, who is a solicitor.

7. She told me that about 13 June she was interviewed by Mr Dorrian, then, after that, a request was made for her old file to be obtained from Town A.  She said that it took a very long time to obtain the file from Town A and she was ultimately only advised for the first time yesterday that her application for legal aid had been refused.  I telephoned Mr Dorrian in open court.  I must say that I thought both parties were in on the conference call but through an error on my part that did not occur, but I did speak to Mr Dorrian.

8. Mr Dorrian largely confirmed what the mother had said. In fact, he confirmed it and added some more detail.  He said that there had been a long delay in obtaining the file from Town A.  He said that he actually only obtained the file a week and a half ago and that he immediately contacted legal aid and provided some advice.  He said that it was correct that legal aid did not confirm the rejection of the mother’s legal aid application until yesterday.

9. The mother before me today, in those circumstances, applied for an adjournment.  She said that:

   a)she was going to appeal the Legal Aid decision;  and / or

   b)she was going to obtain private legal assistance.

   She did not tell me precisely how she was going to obtain the private legal assistance but she asserted that she would be able to access funds in some way to pay for that.

10. I do not think it is necessary to make any findings about the likelihood of success on an appeal.  I am not in a position to assess that.  I do not know how long it will take or what the outcome is likely to be.  In relation to Ms Jefferson obtaining private legal assistance, given that she unilaterally left Town A some nine months ago and has done nothing, really, to obtain private legal assistance, and the precise means by which she asserts she has the ability to do that was not explained, I certainly cannot make an assessment of whether that is likely or not.

11. I also asked Ms Jefferson, given her allegations – in particular, the allegations that the father was driving past her home and harassing her, according to her – whether she had sought an intervention order or a domestic violence order, either from the local court in Town A or applying to this Court to prevent that.  She said she had not, though she asserted that she had complained to the police many times.  I am unable to make any finding about that but, given that she has had many months to make an application of that kind, I am significantly concerned about her failure and I am significantly concerned about the credibility of her allegations against the father.  Be that as it may, I think it is appropriate that there ought to be orders that cover that situation unless there is something in the existing orders.

12. I should say that, after the order of 21 May, which was not complied with, I made a further order on 8 June extending the time for compliance to 28 days from 8 June, in other words, to about 5 July.  Again, there was no affidavit material filed by the mother.  That may in part be explained by her waiting on legal aid but it appears to me, when an interim hearing was set down today, it is simply unacceptable.

13. On that day, I also made an order that the children attend an 11F conference and that took place on 30 August.  The parents and the children, or, at least, [W] and [X], were interviewed by the family consultant.  The father has made an allegation that the mother has been using illicit drugs.  She denies that.  I might say that I have a degree of concern about this issue.  The mother alleges that the father drinks to excess.  The mother, of course, made the allegations that I have already referred to.

14. The most interesting aspect, perhaps, of the conference was the family consultant’s interview with [W] and [X].  11 year old [W] was interviewed, and it was apparent that [W] had been exposed to the issues in this case to a very significant extent.  She, strangely, was not aware that there was an order for the children to spend time with their father.  She was not aware that her father had taken time off in the school holidays to spend time with them. The mother had in fact, according to [W], told the children that the father was unable to take time off to spend with them.

15. [W] was of the view that the children did not see their father because their mother did not want them to.  According to the family consultant, [W] was of the view that:

    Mum wants us to see Dad, but not till Dad thinks better and stops thinking about and talking about Mum all the time.

    That is, in fact, consistent with the things that the mother has told me on a number of occasions in this Court.  Just why that would be a justification for a grave breach of court orders is unclear to me.  It appears to me it is not a justification at all.

16. [W] said that she wanted to live with her mother but, asked if she wanted to see her father at the end of the conference:

    [W] looked sad, shook her head and then asked if she could write him a note.  [W] read the letter out when she had finished composing it.  In the letter, she expressed sentiments such as “I miss you”, “I want to see you”, “I want to stay at your place”, “I wish I could see you”, “I love you so much”, “you’re the best dad”.

17. In the interview with [X], who is seven years old, she was asked if she knew why she was being interviewed.  She said, in substance:

    Because Dad was being mean because he was driving past her house in Town A.

    When asked about this, [X] replied:

    Once, in his car, he drove past her house for a couple of days.  He just liked driving past on the weekends.

    [X] went on to say some things about her mother imposing physical discipline on her with something called (omitted), a kitchen spatula –  called (omitted) because he leaves “stripes on your body”.

18. [W] told the family consultant that the father had been to see her at school in Suburb S.  She said that she was scared he was going to take them back to Town A.  She also said that she had fun when she spent time with her father.  She said that her father yelled once when [W] bumped into the wall and put a hole in it, and so on. 

19. The family consultant also said, in relation to an allegation that the father had made that the mother had been evicted from her rental accommodation in Town A, the mother replied in response to that allegation that “she chose to get evicted” to get away from the father.

20. The mother believed that the father remained focused on her and stalked her.  The family consultant’s assessment was that the father was genuine in his concerns about his relationship with the children.  Of course, at that stage, the children had not spent any time with him for several months.  In relation to the stalking allegations, the father said that he did not stalk the mother, and he stated that the road the mother lived on in Town A was a main route to the shops and also near a friend’s house.

21. The family consultant said:

    It appears the mother has made a unilateral decision to remove the children from Town A despite the court order restraining her from doing so.  This has had a significant impact on the children’s time with the father and has the potential to continue to disrupt the children’s relationship with the father.  The mother returning to Town A may be necessary if the mother’s court-ordered time is to resume.  A family assessment may be needed to assess the allegations and risk factors in this matter and to assist the Court to devise an appropriate parenting plan for the future.

22. I accept that that is the case.  Obviously, the most disturbing thing about this is that there were consent orders made in September last year.  The mother’s allegations are untested.  They are not even the subject of an affidavit and appear to me to be allegations that, even if true, could have been dealt with in various other ways.  It is difficult to see that they would constitute a justification for her unilateral relocation from Town A, failing to advise the father of where she lived, failing to advise the father of where the children were enrolled and generally trying to disappear, which, I am satisfied, is what she has attempted.

23. The other disturbing aspect is that the school holiday time orders have not been complied with at all.  The mother has not complied with the orders in any aspect.  I have asked her whether would be prepared to return to Town A with the children.  She said that she is unwilling to do that, in other words, the mother will not comply, as far as I can see, with an order that she relocate the residence of the children to Town A.

24. In the circumstances, where there is no credible evidence to support the mother’s allegations, where there has been a unilateral relocation, where there are some concerning aspects about the nature of the mother’s relocation – that is, following, apparently, an eviction from her rental premises – and where there are allegations of drug use, I have very serious concerns about the circumstances of these children at the moment.  It appears to me that there may need to be a further assessment of some of these allegations, including, in particular, the drug use allegation. However, I am satisfied that the children should return to Town A as soon as reasonably practicable.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 2 November 2018