McGarat and England (No 2)

[2009] FamCA 1237

FAMILY COURT OF AUSTRALIA

MCGARAT & ENGLAND (NO. 2) [2009] FamCA 1237

FAMILY LAW – CHILDREN – interim orders – with whom a child lives – where orders were previously made for the children to live with the father – where the mother removed the children from school and did not return the children to the father – where it is not appropriate for the parties to have equal shared parental responsibility – where the mother alleges the father has assaulted and neglected the children – where the father alleges the mother is not encouraging an ongoing relationship between the father and children – where it is in the best interests of the children for the relationship between the father and the children to be restored – order for the children to live with the father until further order

Family Law Act 1975 (Cth) ss 60CA & 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr McGarat

RESPONDENT: Ms England

INDEPENDENT CHILDREN’S LAWYER: SRG Lawyers

FILE NUMBER: ADC 67 of 2007

DATE DELIVERED: 18 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Croydon

SOLICITOR FOR THE APPLICANT: Croydons

COUNSEL FOR THE RESPONDENT: Ms O’Connor

SOLICITOR FOR THE RESPONDENT: Graeme Hemsley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SRG Lawyers

Orders

1. UNTIL FURTHER ORDER the children S born on … March 2000 and L born on … March 2002 live with the father and that he have sole parental responsibility for the children.

2. The mother is restrained and an injunction is granted restraining her from attending at the children’s school at any time and she is also restrained from contacting the children or removing the children from the care of the father or from their school at any time.

3. The children are to be delivered up to the father this morning from the Childcare Centre of the Family Court of Australia.

4. The parties and the children are to attend upon the single expert, Ms A, for the preparation of an urgent arranged report in relation to the matters concerning the welfare of the children such report to be arranged by the Independent Children’s Lawyer at the initial cost of the Legal Services Commission and to include (as Ms A may determine) observations of the interaction of the children with each of the parents and other relevant persons.

5. The father is restrained and an injunction is granted restraining him from any form of physical discipline to either of the children and from permitting any other person to physically discipline the children.

6. The matter is adjourned for further consideration as soon as Ms A’s report is available to the Court so that further consideration can be given to all of the children’s issues.

7. The matter is to be listed before the first available Judicial Officer able to hear it on that occasion.

8. The listing dates of the 20 November 2009 at 9.15 am before the Honourable Justice Dawe and the listing for directions before the Registrar on 24 November 2009 at 11.30 am are vacated.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 67 of 2007

MR MCGARAT

Applicant

and

MS ENGLAND

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an interim application before the Court in relation to the welfare of two young children.  The history of the matter is extensive.  In the context of this interim application before me in the duty list as an urgent matter, it is difficult to recite the full history of the matter. 

2. S, who was born in March 2000, is now nine, and L, who was born in March 2002, is now seven. 

3. There has been litigation before this Court and at times the Federal Magistrates Court for many years.  One file has a 2005 action number.  The other file has a 2007 action number.  There are over 200 documents which have been filed in the proceedings concerning these children in that time.  There is clearly an ongoing conflicted relationship between the parents of the children.

4. The final orders were made after a period of considerable litigation on 16 March 2009 when the mother and father were both represented by counsel and the children were represented by the Independent Children’s Lawyer, Mr Reynolds.  Those orders were made on 16 March 2009 by consent.  The orders provided for detailed arrangements to take place in relation to the children on the basis that the mother was moving to have a permanent residence at P.  Arrangements were made for the children to spend time with the father and mother in accordance with the particular regime which proposed that the children have regular contact with each of the parents during school time and school holiday time.

5. There was an order made that the parties were restrained from changing the enrolment of the children from the P Primary School.  There were specific injunctions dealing with the interaction between the parties and the children.  The order is long and is very specific in many cases.  It requires the parties to keep the other advised as to the residential addresses as and from the date of the commencement of paragraph 1 (which was term 3 of 2009). 

6. The matter came back before the Court in proceedings filed by the father in September 2009 in which he sought certain orders.  In support of that he filed an affidavit. 

7. When the matter came on before Justice Burr on 9 October 2009, he made ex parte orders discharging paragraphs 1, 2, 3, 4, 5 and 6 of the orders of 16 March 2009 and made an order for the reappointment of the Independent Children’s Lawyer.  Specifically he made orders that the mother immediately deliver up the children, S and L, to the father, restrained the mother from removing the children, S and L, from the State of South Australia, and other orders including granting leave to the father to issue a subpoena directed to the maternal grandmother to attend Court on the adjourned date.  (That is a summary of the orders that were made by His Honour on 9 October 2009).

8. The matter then came before me on 23 October 2009.  On that occasion, the father was present and represented by Ms Croydon. The Independent Children’s Lawyer, Mr Reynolds, was also present.  The mother was not present.  In response to the subpoena, the maternal grandmother was present.  She was sworn and gave evidence that her daughter (the mother in these proceedings) was aware of the proceedings before the Court as she had spoken to her very shortly before the hearing on 23 October 2009.  She maintained in her evidence that the mother did not attend Court that day because she did not want to appear at the Court unless she was represented.

9. It was clear from the evidence of the maternal grandmother that the mother was aware of the serious nature of the proceedings before the Court on 23 October 2009.  Orders I made on that occasion were that until further order the children, S and L, live with the father and that he have sole parental responsibility for the children.  The mother was restrained and an injunction was granted restraining her from attending at the children’s school at any time on that day, namely, 23 October 2009.  The mother was also restrained from arranging for anyone else to collect the children from their school that day.

10. The father was directed to attend to collect both children from their school on that occasion (it having been ascertained that the children were attending K Primary School rather than the P school which was the school provided for in the March 2009 order).  A recovery order was issued on that occasion but stayed until 4.30 on that afternoon to allow the father time to collect the children from school. 

11. The mother has now filed an affidavit which indicates that she was aware of the proceedings before the Court and aware that her mother had attended.  She says in her affidavit:

    “I am informed by my mother and very believe that she was present in the Court when the Court advised her that she could ring me and tell me what was happening, that is, that the children were to be picked up by the father.  In fact, I was at the school when that occurred.”

12. Paragraph 85 she says:

    “I say that when I was given that information I panicked and took the children from the school and I have not returned the children as I fear for their safety.”

13. The mother’s affidavit, which was sworn on 12 November and filed on 12 November 2009, is a lengthy affidavit with a considerable number of annexures.  In that affidavit, however, the mother does not disclose where she has been living since 23 October 2009, nor where the children have been residing, nor where the children have been attending school or what form of education they have been undertaking.

14. Some information was given by the mother’s counsel from the bar table, but initially it was somewhat confused.  The Court was initially told that the mother was residing at V, but then later told that the mother was living at a friend’s place at M. 

15. The Court is being asked by the Independent Children’s Lawyer, in particular, to take into account (when determining the factors in relation to the best interests of the children) the substantial history of this matter which has involved allegations being made by the mother concerning the behaviour of the father, investigations being carried out and proceedings being instituted, the time the father spends with the children and then, later, the matter resolving by way of the consent orders in March 2009.

16. It is appropriate to consider the allegations which the mother now makes in relation to her behaviour and the allegations she makes in relation to the father’s behaviour in that context.  In particular, the mother has at some length, in her affidavit filed on 12 November attempted to explain the delay in approaching the Court to seek to vary the orders made in March 2009 and to explain the absence of any application by her to any Court to vary or discharge those orders until the documents were filed on 12 November 2009.  I accept the submission of the Independent Children’s Lawyer that the inaction by the mother needs to be seen in the context of the ongoing proceedings between the parties since 2005.

17. What, however, is the significant matter that I have to take into account is the allegation of violence made by the mother in relation to the children.  This is an interim matter, but the law makes it clear that the Court is required to consider all of the matters in the context of allegations being made and denied.  Part VII of the Family Law Act1975 (Cth) sets out the factors which have to be taken into account, significantly in relation to allegations of family violence, and in relation to the other factors which relate to the matters concerning the best interests of the children.

18. The Court is required to consider the matters referred to in Goode & Goode (2006) FLC 93-286 which include the consideration of whether shared parenting is appropriate and whether the provisions follow on from the Court making an order in relation to equal shared parenting.

19. In this particular matter, the Court is readily satisfied that the parents’ lack of ability to cooperate at any level at this stage of the proceedings indicates that it is not appropriate within the terms of the legislation for equal shared parental responsibility to be maintained concerning these children.

20. On the face of it, the mother makes allegations that the father has assaulted the children and has seriously neglected the welfare of the children. The father’s allegations clearly support the premise that the mother is not taking steps to encourage an ongoing relationship between the children and the father. For all of those reasons, therefore, the provisions which presume that shared parental responsibility is appropriate do not apply to this matter. Nonetheless, it is necessary to consider the matters contained in section 60CA and section 60CC of the Family Law Act so far as it assists the Court in determining what is in the best interests of these children pending the investigation of the contested evidence before the Court.

21. The contested evidence is significant to the extent that the mother alleges that the children are fearful of the father, frightened to be in his care, and that this arises because of his behaviour.  In particular she refers to his behaviour of locking them out of the house and his behaviour in allegedly assaulting S. 

22. The father admits in his affidavit (which was before the Court when the matter first came before me in October this year) that he had smacked S but denies on the two occasions that they constituted an assault upon the child to the extent alleged by the mother.

23. The allegations, therefore, need to be seen in the context of that, namely, that they are allegations made by the mother and denied by the father.  The Court, therefore, needs to weigh up that on an interim basis.  There being no cross-examination of the parties or provision of other material, it is difficult for the Court to come to any conclusion about which version of the facts is correct.

24. Again, it is appropriate to take into account the context of the history of the matter and the ongoing allegations that have been made in relation to the children.  The Court must regard the best interests of the child as the paramount consideration.

25. The primary consideration when assessing those are the benefit of the child having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect, or family violence. 

26. The Court is required to consider the additional considerations which include any views expressed by the children, the nature of the relationship of the children with each of the parents and other persons, the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and the likely effect of any change in the child’s circumstances including any effect on the separation from one or other of the parents.

27. The question of practical difficulty also exists in this case because of the distance that previously existed in relation to the homes of the children’s parents. 

28. The Court is also to consider the capacity of each of the child’s parents to provide for the needs of the children, including the emotional and intellectual needs, and the attitude to the children and the responsibility of parenthood demonstrated by each of the parents. Specifically, section 60CC (3) (j) refers to any family violence involving the child or a member of the child’s family and any family violence order that applies.

29. I am aware of the applications by the mother seeking orders by way of restraining orders directed to the father based on the mother’s allegations which seek to protect her and the children from spending time with the father.  The documents which are now before the Court recite allegations of past events and allegations in relation to the current matter concerning the assault upon S in July.

30. It appears that the State Courts have been told that there are contact orders in relation to the children, but it is not clear on the face of it whether the State Courts are being made aware of the consent order entered into between the mother and the father, assisted by counsel and the Independent Children’s Lawyer in March of this year. 

31. I have to weigh carefully all of the factors contained in section 60CC and, in particular, the need to protect the children and to carefully consider the allegations of family violence. At this stage, the allegations in relation to family violence and what would appear to be the difficulty of the children currently relating to their father need to be considered. I also need to consider carefully the fact that the children have not spent any time with their father since late July of this year.

32. I take into account the submissions of the Independent Children’s Lawyer who asks the Court, after considering all of the material, that the children be returned to the father, live with him and have no contact with the mother until such time as a report by the expert, Ms A, can be completed. 

33. I take into account that this would be a significant step bringing about a situation where the children are again placed with one parent without the benefit of having, in that short term, an ongoing relationship with the other parent.

34. In view of the history of the matter, however, the actions of the mother since these allegations arose in July of this year, and the behaviour of the mother since the orders were made on 11 October and 23 October 2009, I consider that it is in the best interests of the children for the relationship between the father and the children to be restored.  The children can also be protected by an order of this Court that the father not use any form of physical discipline of the children and not permit any other person to use any form of physical discipline of the children. 

35. I therefore propose that the orders which were made by the Court on 9 and 23 October continue. 

36. I am being asked by the counsel for the father to also make an order that if the mother breaches the restraining orders which are sought concerning the children, that she be subject to an order which would allow her to be immediately arrested.

37. The mother has been present in Court today and has heard the orders being made.  I do not propose to make an order that she be arrested; however, I make it quite clear that if the mother takes step to disobey or fails to obey the orders of this Court in any way, she will be likely to be subject to the serious consequences which apply to either contraventions or contempt of Court and the Court would obviously give serious consideration to making such an order on the next occasion.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  15 December 2009