Matthews and Norris

[2016] FamCA 1156

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS [2016] FamCA 1156

FAMILY LAW – INTERLOCUTORY – Injunction – Where the father seeks an injunction restraining the mother from removing the child from Australia – Where, two months before, the mother sought interim relief enabling her to relocate with the child to New Zealand and her interim application was dismissed – Where the mother again seeks orders enabling her to take the child to India and New Zealand – Where the father perceives India to be dangerous and is concerned the mother will not return with the child if she is permitted to travel to New Zealand – Ordered that the parties are restrained from removing the child from the Commonwealth of Australia

Family Law Act 1975 (Cth), ss 65Y, 65Z, 98AB

McKenzie v McKenzie (1970) 3 All ER 1034

APPLICANT: Mr Matthews

RESPONDENT: Ms Norris

INDEPENDENT CHILDREN’S LAWYER: Mr Scally, Legal Aid NSW

FILE NUMBER: NCC 2226 of 2015

DATE DELIVERED: 22 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 22 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Oliver Campbell Heslop Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Scally, Legal Aid NSW

Orders

BY CONSENT, IT IS ORDERED THAT

1.Leave is granted to the respondent wife to rely upon Mr West as her McKenzie Friend.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

2.Orders 1.11 and 1.12 made on 21 January 2016 (as amended on 2 March 2016) are discharged.

3.Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of B (the child), born … 2010, from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 12 months.

4.Otherwise:

a.The Application in a Case filed on 13 December 2016 is dismissed;

b.The Response to an Application in a Case filed on 19 December 2016 is dismissed; and

c.Any and all other outstanding applications for interim relief are dismissed.

5.No order as to costs.

BY CONSENT, IT IS FURTHER ORDERED THAT

6.Leave is granted to the parties and the Independent Children’s Lawyer to inspect the documents produced on subpoena by:

a.Positive Fix; and

b.Roads & Maritime Services.

7.Order 13 made on 24 November 2016 is discharged and the substantive proceedings are instead re-listed before the Court for further procedural directions at 9:30 am on Thursday, 23 March 2017.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Norris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2226 of 2015

Ms Norris

Applicant

And

Mr Matthews

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1.These parenting proceedings were commenced in August 2015. They relevantly concern the only child – a daughter aged six years – of the applicant father and the respondent mother. To say the litigation has been vexed would be an understatement of serious proportions. 

2.In January 2016 I made interim parenting orders providing, relevantly, for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend gradually increasing time with the father, culminating in a regime of “substantial and significant time”. Those orders were adjusted slightly in July 2016 with the parties’ consent.

3.In November 2016 the parties each made further interim applications. The mother sought to relocate with the child to New Zealand and the father sought an injunction restraining the mother from removing the child from Australia. It is common ground the mother is a New Zealand citizen and she holds the child’s New Zealand passport. The parties’ respective applications were dismissed by Cleary J less than two weeks ago on 9 December 2016.  Notwithstanding, they have both since filed almost identical applications. 

4.The father filed an Application in a Case on 13 December 2016 seeking an injunction precluding the removal of the child from Australia and the placement of the child’s name on the airport watch list. The mother filed her Response to an Application in a Case on 19 December 2016 seeking discharge of the existing interim parenting orders and replacement of them with orders allowing her to relocate with the child to New Zealand.

5.The father’s renewed application was premised upon events that have occurred in the two weeks since the orders were made by Cleary J on 9 December 2016, but the mother’s application plainly was not. She sought to agitate her application afresh on evidence little or no different to that which she has adduced before. In fact, the mother’s proposal and evidence only tended to support the need for reconsideration of the father’s application.

6.The Independent Children’s Lawyer supported the father’s proposal and resisted the mother’s application.

Evidence

7.The father relied upon his affidavit filed on 13 December 2016. 

8.The mother relied upon the affidavits of herself and her partner, Mr West, both of which were filed on 19 December 2016. Leave was also granted for Mr West to act as the mother’s McKenzie Friend (see McKenzie v McKenzie (1970) 3 All ER 1034).

9.The mother was denied leave to rely on the affidavit of the maternal grandmother, filed on 20 December 2016, because it did not comply with s 98AB(2) of the Family Law Act 1975 (Cth) (“the Act”).

The mother’s proposal

10.No evidence of any change in circumstances since 9 December 2016, which would warrant reconsideration of the mother’s proposal, was placed before the Court. The whole of her evidence related to historical events and will probably be the subject of thorough evaluation at the time of final trial, which will likely occur in or about June or July 2017. No aspect of the evidence recommended granting her the immediate ability to remove the child to New Zealand when that is one of the pre-eminent issues for determination at final trial.

11.Mr West gave some evidence about both the child’s conduct and statements made by her on 10 and 16 December 2016, but that evidence only tended to prove the child is emotionally disturbed by the parental conflict. It is not a sound evidentiary basis to fundamentally restructure existing parenting orders. 

12.For those reasons, the mother’s application will be dismissed.

The father’s proposal

13.On 10 December 2016 (the day after Cleary J dismissed their last applications) the mother sent an email to the father in the following terms (Exhibit M1):

I hope you recall me giving you notice earlier this year about taking [the child] overseas in the term 4 holidays... Looking at leaving on Boxing Day for India.  We will spend approximately one week in India.  After that we will probably head to [C Town] (New Zealand) for a week...  Let me know if you have any concerns...

14.The father did and still does have concerns. He replied by email to the mother on 12 December 2016 in the following terms (Exhibit M1):

No I do not know of the notice you refer to, regarding an overseas holiday.  The orders give each of us care on an alternate weekabout basis. Yes, I have concerns about allowing [the child] to be out of Australia for more than one week at a time and will not consent to any extension of this.  Note the day after boxing day is a time when [the child] will be in my care...

15.The father does not want the child taken overseas, particularly to India or New Zealand, because he reasonably perceives India is dangerous and he is concerned if the mother takes the child to New Zealand she will not return with her. His fear is not groundless. It is, in fact, reasonably engendered by the mother’s conduct. After he filed his Application the mother filed her Response expressly seeking an order enabling her to relocate with the child to New Zealand, so she clearly wants to go to and stay in New Zealand with the child.

16.As for proposed travel to India, the mother tendered an excerpt from the Australian Government Smartraveller website (Exhibit M2). It relevantly provides:

India overall,  exercise a high degree of caution  Pay close attention to your personal security at all times and monitor the media about possible new safety or security risks.

17.The evidence revealed no good reason for any chance to be taken about the child’s safety by taking her to India.

18.As for the proposed travel to New Zealand, the mother has the child’s New Zealand passport and she is a New Zealand citizen. Although the current parenting orders vest parental responsibility for the child in both parties, that may not of itself be sufficient to prevent the mother from taking the child out of the country to avoid further participation in these proceedings, which eventuality her conduct and statements suggest she would prefer. 

19.Consequently, notwithstanding the provisions of ss 65Y and 65Z of the Act, I intend to make the orders the father seeks.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 December 2016.

Associate: 

Date:  2 February 2017