MATTHEWS & NORRIS

[2017] FamCA 69

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS [2017] FamCA 69

FAMILY LAW – INTERLOCUTORY – Relocation – Where the mother seeks to relocate to New Zealand with the child on an interim basis – Where two previous applications of the same sort have been heard, determined and dismissed by this Court – Where there was no evidence of any change in circumstances since the application for relocation was last before the Court and no amendment to existing interim orders is warranted – Ordered the mother’s application is dismissed

FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery order – Where the mother ceased allowing the child to spend time with the father pursuant to interim orders – Where the mother would not commit to faithful implementation of the existing parenting orders – Decided a recovery order should be issued and operate for one month – Recovery order issued

FAMILY LAW – EVIDENCE – Admissibility – Where the father seeks to rely on a second affidavit – Where the affidavit was in reply to the mother’s Response seeking alteration of interim orders – Application of rule 9.07 of the Family Law Rules 2004 (Cth) – Leave for the father to rely on the additional affidavit is granted

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth), r 9.07

Matthews & Norris [2016] FamCA 1156

APPLICANT: Mr Matthews

RESPONDENT: Ms Norris

INDEPENDENT CHILDREN’S LAWYER: Mr Squires, Legal Aid NSW Newcastle

FILE NUMBER: NCC 2226 of 2015

DATE DELIVERED: 6 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 6 February 2017

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 Squires, Legal Aid NSW Newcastle

Orders

BY CONSENT, IT IS ORDERED THAT

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

IT IS FURTHER ORDERED THAT

1. This recovery order is addressed to the Marshal, all officers of the Australian Federal Police, and all officers of the State and Territory Police Forces.

2. The persons to whom this recovery order is addressed are authorised and directed to find and recover the child, B born in 2010, and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found including the premises of the respondent mother situated at E Street, Suburb F NSW.

1. Upon recovery, the child is to be delivered to the applicant father at G Street, Suburb H NSW, or to the person nominated by him in writing to receive the child on his behalf.

1. These orders will remain in force for a period of one month.

2. Otherwise:

   a.The Application in a Case filed on 17 January 2017 is dismissed; and

   b.The Response to an Application in a Case filed on 1 February 2017 is dismissed.

3. The Application-Contravention filed by the mother on 17 January 2017 is dismissed.

4. The proceedings are adjourned to 9.30am on Thursday, 23 March 2017 for further procedural directions in respect of all substantive applications under Part VII and Part VIII of the Family Law Act.

5. Order 12 made on 24 November 2016 is discharged.

6. Leave is granted to the applicant father to issue a subpoena to the Proper Officer of J Centre, Suburb I NSW.

NOTATIONS

A.The Application-Contravention filed by the mother on 17 January 2017 was listed for hearing before the Court at 2pm today, simultaneously with an interim parenting dispute between the parties. The parties agreed that the interim parenting dispute be determined first and that the mother’s Application-Contravention be determined immediately thereafter. During the course of the interim parenting dispute the mother absented herself from the Court without explanation and when her Application-Contravention was called on for hearing she was not present to prosecute it.

B.The parties and child are due to confer with the Family Consultant on Tuesday, 14 February 2017.

C.The parties and the Independent Children’s Lawyer presently contemplate the prospect of their applications in respect of parenting orders pursuant to Part VII of the Family Law Act being heard and determined before and separately from their respective applications for property settlement pursuant to Part VIII of the Family Law Act.

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

Mr Matthews

Applicant

And

Ms Norris

Respondent

And

Independent Children’s Lawyer

Ex Tempore

REASONS FOR JUDGMENT

1. These reasons determine another interim dispute between the applicant father and respondent mother in respect of their child born in 2010, who is now aged six years. The last interim dispute between the parties over the child was determined less than six weeks ago on 22 December 2016, for which reasons were published (see Matthews & Norris [2016] FamCA 1156). Unfortunately, the parties’ appetite for litigation is voracious. Notwithstanding those orders made on 22 December 2016, the parties again fell into dispute only days later on Boxing Day.

2. Interim parenting orders, made between the parties with their consent in January 2016, required them to ensure the child spent an equivalent amount of time with each party over the period between Christmas Eve and Boxing Day.  The evidence placed before the Court demonstrated the father had the child over Christmas Eve, delivered the child back to the mother in accordance with the orders on Christmas Day, and expected to receive the child back from the mother on the afternoon on Boxing Day, so the child could spend the remainder of the first half of the Christmas school holidays with the father. The mother failed to return the child to the father on Boxing Day and the Christmas holidays thereafter expired without the child spending any further time with him. 

3. As a consequence of the father’s displeasure with that situation, he filed an Application in a Case on 17 January 2017, seeking a variety of orders, but in particular, a recovery order. 

4. The mother responded by filing her Response to an Application in a Case on 1 February 2017, seeking a completely different suite of orders.

5. It was apparent from comparison of their proposals that they are in grave dispute about whether the current interim parenting orders should continue to operate (as the father wants) or rather be discharged and replaced with a completely different suite of orders (as the mother wants). 

6. In the meantime, further visits by the child with the father have been frustrated.  Under the existing orders, she was again due to spend three days with the father commencing on Monday 30 January 2017, once the new school year resumed,  and was again due to commence spending time with him at 2.40 pm today. 

7. No satisfactory explanation was advanced by the mother for why the orders are not the subject of her compliance. Regardless, the mother has refused to concede on the record that she will now implement the orders that were made with her consent in January 2016.

Proposals

1. The father abandoned the orders proposed in his Application in a Case because circumstances have overtaken them. His counsel informed the Court the only order he now seeks is a recovery order to ensure the child is recovered from the mother so that she is able to spend the next three days with him in accordance with the existing orders. 

2. The mother confirmed that she sought each and every one of the orders set out within her Response to an Application in a Case (including the Orders numbered 8 and 9, which appear after Order 13).

Evidence

1. The father relied upon his affidavit which was filed contemporaneously with his Application in a Case on 17 January 2017. 

2. The mother relied upon her affidavit which was filed contemporaneously with her Response on 1 February 2017. 

3. A dispute arose as to whether or not the father ought be entitled to rely upon his second affidavit, filed on 3 February 2017. Leave was sought by him to do so, which grant of leave was opposed by the mother. She sought to vindicate her opposition by reliance upon rule 9.07 of the Family Law Rules 2004 (Cth), but that rule only strengthened the father’s application for leave to rely upon the affidavit. Rule 9.07 provides that, if a respondent files a Response seeking orders in a cause of action other than in respect of the cause of action raised by the applicant in the Application in a Case and the applicant opposes the orders sought by the respondent in respect of the fresh cause of action in the Response, then the applicant is entitled to file an affidavit setting out the facts relied upon in respect of that fresh issue.

4. The father’s only application in these proceedings was, in effect, to ensure the faithful implementation of the existing interim parenting orders made in January 2016 (as amended under the slip rule in March 2016 and as slightly varied in December 2016). When the mother filed her Response, not only did she seek the discharge of those orders, she also sought the substitution of fresh interim parenting orders which, importantly, invested her with sole parental responsibility for the child. She also sought fresh orders in respect of spousal maintenance and the manner in which the father and child might communicate electronically, in the event she was successful with her application to take the child to New Zealand.

5. The second affidavit filed by the father addressed, in the main, the issue of parental responsibility because it is clear the mother has not returned the child to school this new academic year. The mother confessed her unilateral decision to ensure the child is home-schooled, to which the father is vehemently opposed. Of course, the issue of the child’s education is a “major long-term issue” of concern to the child and a matter upon which the parties are obliged to confer in furtherance of the existing order for them to have equal shared parental responsibility for the child. Unfortunately, the mother and father factually dispute the child’s ability to attend a certain school because of allegedly unpaid school fees, but the evidence about the dispute was less than clear. In any event, untested evidence about contested allegations usually precludes judicial determination of the contested issue in interlocutory hearings and, in this case, neither party expressly sought an order to resolve that particular issue. 

6. Nonetheless, reception of the evidence adduced by the father in his second affidavit was necessary in order to ensure the orders in dispute between the parties were not determined on the basis of some error about the underlying factual circumstances. Therefore, notwithstanding the mother may only have been served with that affidavit last Friday by email, justice between the parties required the contents of the affidavit to be taken into account. In any event, it comprised only 21 paragraphs and, given the mother’s obvious intelligence, I am satisfied she would have absorbed its significance in the time it has been in her possession. Even though she disavowed receiving it by email last Friday, she said from the bar table she received it this morning. The hearing did not commence until 2.00 pm this afternoon and she has had sufficient time within which to appraise herself of the contents. 

7. For those reasons, leave was granted to the father to rely upon that second affidavit for the purposes of today’s hearing.

Parenting dispute

1. The mother sought that the existing interim parenting orders be discharged and replaced with orders to the effect that she have sole parental responsibility for the child, that she and the child be permitted to relocate to New Zealand, and that fresh arrangements be implemented for the child and father to be able to communicate electronically between New Zealand and Australia.

2. Suffice to say, none of the evidence placed before the Court warranted revision of the existing parenting orders. As I have already indicated, the interim orders were made with the mother’s consent in January 2016. On two occasions in December 2016 (on 9 December 2016 before Cleary J and on 22 December 2016 before me), the mother sought orders revising the interim orders and permitting her to relocate on an interim basis with the child to New Zealand.  Cleary J dismissed the application before her Honour, as did I with the same application before me only two weeks later. The application made by the mother today to that same effect was not supported by any evidence of any change in circumstance since her similar (if not identical) application was last considered less than six weeks ago on 22 December 2016. Necessarily, it should be dismissed. 

3. The only argument advanced by the mother for any change to the interim parenting orders was her oft-asserted contention that this Court has repeatedly failed to take into account the child’s best interests and, in particular, failed to give proper consideration to the provisions of Part VII of the Family Law Act 1975 (Cth). None of the submissions made by the mother today satisfied me that any significant past error has been made or that any amendment to the existing interim parenting orders is warranted.

4. For those reasons, her application in that regard is dismissed.

Recovery order

1. When it became apparent to the mother that her application to revise the interim parenting orders would be unsuccessful, an inquiry was made of her as to whether or not she would now faithfully implement the existing parenting orders. She refused to give an unequivocal commitment to that effect and so, since she has precluded the child from spending any time with the father in accordance with those orders since 26 December 2016, I see little option but to make the recovery order in respect of the child that the father seeks. 

2. The recovery order will authorise the child’s recovery by authorities from the mother and her placement into the father’s care for the next three days she is due to stay with him pursuant to the orders.   

3. Of course, in the event that the recovery order is executed and the child is placed into the father’s care, at 7.00 pm on Thursday 9 February 2017, he will be obliged by the existing orders to return the child to the residence of the mother. The child will then again be due to spend time with him beginning at 2.40 pm on Monday 13 February 2017 and, if the mother fails to comply with the orders at that time, the recovery order will still apply. The recovery order should be operable for a period of one month. 

4. If it becomes apparent to the father over the course of the ensuing month that the mother’s contravention of the existing orders is to be repeated, then it will provide him with sufficient time within which to file a fresh application seeking interim residence of the child, if that is what he actually proposes.

Spousal maintenance

1. The mother applied for an order that the father pay to her $1,500 per week by way of spousal maintenance, with that amount to reduce to $500 per week if she is able to move to live in New Zealand. 

2. She did not adduce any evidence as to her financial need in her affidavit filed in support of her application and so there was no opportunity to assess the level of her need for spousal maintenance. Nor was there any evidence placed before the Court as to the father’s capacity to pay. The complete absence of evidence necessitates a decision to dismiss the mother’s application for spousal maintenance. 

Conclusion

1. For those reasons, I consider it appropriate to dismiss the parties’ respective applications contained in the Application in a Case and the Response to an Application in a Case and to make the recovery order essentially sought by the father.

2. I note the mother’s Application-Contravention was also listed for hearing before the Court at 2.00 pm today. The parties agreed the interim parenting dispute should be determined first and the mother’s contravention application be determined immediately thereafter. During the course of the interim parenting dispute, the mother absented herself from the Court without explanation and when her contravention application was called on for hearing she was not present to prosecute it. It will therefore be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 6 February 2017.

Associate: 

Date:  14 February 2017