McIver and MacLaren

[2007] FamCA 728

FAMILY COURT OF AUSTRALIA

MCIVER & MACLAREN [2007] FamCA 728

FAMILY LAW – Parenting – Relocation – Orders made that mother return “as soon as practicable” – Contravention application brought because mother failed to relocate – Prima facie case found – Mother claimed it was not “practicable” to relocate because she is impecunious and will be in the near future – As a result there was no breach of the order and it is unclear as to how such an order could ever be enforced – Not appropriate to vary the parenting order because the order is the subject of an appeal – Application dismissed without costs

Family Law Act 1975

APPLICANT: Mr McIver

RESPONDENT: Ms MacLaren

FILE NUMBER: CAC168 of 2007

DATE DELIVERED: 8 June 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 8 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Salinas

SOLICITOR FOR THE RESPONDENT: Mr Brunning

Orders

1. That the father’s application for contravention filed on 16 May 2007 is dismissed.

2. That there be no order for costs.

3. That the application for contravention be removed from the pending cases inventory.

IT IS NOTED THAT:

1. The appeal remains outstanding.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as McIver v Maclaren.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 168 of 2007

MR MCIVER

Applicant

And

MS MACLAREN

Respondent

REASONS FOR JUDGMENT

1. In this matter the proceedings before the Court relate to an alleged contravention of an order made by Brewster FM on 6 March 2007. In that order his Honour required that the mother, who had unilaterally removed herself and the parties’ son and the mother’s other children from the Australian Capital Territory (the ‘ACT’) to Queensland, relocate to “the Canberra area as soon as practicable”.

2. The phrase included by his Honour was undoubtedly intended by him to deal with the obvious situation that it may not have been possible for the mother to move immediately.  I have no evidence before me about whether his Honour had evidence at that point about the financial circumstances of the mother or about the possibility of accommodation in Canberra or any of the other matters that might have led him to conclude that at some point relatively soon thereafter there would be an opportunity for relocation.  It would have been open to his Honour to have made an order requiring (without any qualification) the mother’s return to the Canberra area or which had a qualification as to time – that in effect that they return by a certain date.  His Honour, for whatever reason, chose to adopt none of those courses and in the end I am left with the requirement to construe the words, “as soon as practicable” in their ordinary sense.

3. In this regard the evidence before me included material from the father which suggests that he was attempting to persuade the mother to return as soon as possible and contains, among other things, evidence from him about a conversation which he says happened on 3 May 2007 in which the mother says, among other things as follows:

   Unless you’re coming to Queensland, that is the only way you can see him. I have no intention of bringing [T] to the ACT.

4. That phrase was not the subject of detailed cross-examination apart from the questions directed to whether or not the statement as said did in fact occur.  The witness, the father, said that it did occur and that was the evidence.  Upon that evidence it seemed to me that I should determine that there was a prima facie case that the order made by his Honour had been breached.  This was on the basis that the phrase referred to was, on its ordinary meaning, capable of construction as a denial of any intention to comply with the order made by his Honour.

5. After I found there was a prima facie case the mother chose to give evidence and relied upon an affidavit and statement of financial circumstance filed by her.  Cross-examination was directed to the content of the financial statement and that elicited from the mother in answer to questions in cross-examination that she had, in effect, no savings, no capacity to pay any money and was actually losing money on a weekly basis.  I find no reason to disbelieve the mother in her statements about those matters in general terms.  It is difficult to be entirely satisfied, but, in broad terms, I accept that there is no surplus of money and certainly no money such as would permit her to relocate.

6. One might reflect that it is difficult to see how that situation is going to change in the future so that whether “as soon as practicable” has any meaning in the overall context of this matter is another question.  However, the original order made by his Honour has been the subject of appeal and will be heard on 10 July 2007 and no doubt the appeal judge will determine some of those issues in the course of that hearing. 

7. Be that as it may; the mother’s evidence was that irrespective of whether or not she could find accommodation in Canberra (which she said she could not) she did not have the financial means to relocate from Queensland to Canberra at this point.

8. In such circumstances, if I were to accept that evidence, it seems to me that the proper construction of whether or not the order had been breached, would at least require me to consider whether her financial incapability would constitute, in the circumstances, an impracticability as his Honour had put it.  In my opinion, on the plain meaning of the order, (forgetting about for a moment whether there was a reasonable excuse), it seems that on the evidence the mother was not capable of relocating at this point and that hence the order was not breached because there had not been an impracticability demonstrated or a practicability demonstrated - as the proper construction of the order would required.

9. As Mr Salinas points out; this is a highly unsatisfactory situation.  Forgetting for a moment about the broader proposition of whether or not T should be spending time with his father; there remains the question about whether the mother is going to be able at any point to comply and how anyone would ever establish when it was.  This is a matter that presumably might be the subject of consideration on appeal although I note that the father does not appear to have appealed against the order himself.  If the appeal were granted then it may be the mother is permitted to remain in Queensland.  If the appeal were denied, the order would still remain and the father would still be faced with the same problem.  However, that is not a matter for me but a matter for the appeal judge and for those advising the father.

10. On the evidence before me I cannot find that there has been breach of the order and the application for the mother to be dealt with for contravention is dismissed. 

11. I should indicate, in coming to that conclusion, I have reached that conclusion based on the balance of probabilities, not on the basis that I am satisfied beyond reasonable doubt.  In that matter I have taken account of the provisions of the Family Law Act 1975 (the ‘Act’), notwithstanding the almost incomprehensibility of the section relating to the standard of proof required. I am satisfied that this is not a matter, in any event, in which it would have been appropriate to impose one of the more serious penalties prescribed under the Act and that therefore, irrespective of the proper construction of the section relating to the standard of proof in s 70NAF, it was unnecessary for me to find what I needed to find beyond reasonable doubt. I find, on the balance of probabilities, that the order has not been breached and accordingly dismiss the application.

12. In dismissing the application it would nevertheless be open to me to make an order varying the existing orders. Some provisions of the Act which are designed to ensure that the proper matters in dispute between the parties are in fact litigated. I have no application before me, except informally by the father, to vary the orders that were made by his Honour. I would be prepared to allow an oral application for variation of the orders but when I inquired about the nature of the variation that was sought, it seemed to me that there had been no thought given to what would be in the best interests of the parties’ son.

13. In this regard it appears that a variation that might be sought would be to require the mother to return T to the ACT immediately or at some point or by a certain date, which appears to, on the last sort of set of submissions made to me, to be a date before the appeal was heard. My concern about that is that in effect this would constitute an appeal against his Honour’s orders in some respects and it is not appropriate that I should deal with that in this context.

14. Second; if as seen to be the case, it was unlikely that that order would be complied with, the subsidiary orders sought by Mr Salinas on behalf of the father was that there should be a recovery order which would involve the removal of T from his mother by the police and his return to Canberra with the police to his father, whom he has not seen for some time.

15. By any measure that result is unlikely to be in T’s best interests.  I say this in default of there being any evidence about the psychological or developmental consequences to T of such an action and in default of there being any satisfactory evidence before me of the matters that I should properly take into account in making a parenting order under s 60CC. 

16. Mr Salinas, in the circumstances, probably sensibly, chose not to elaborate on the matters that I would be obliged to take into account under s 60CC but in default of my having any evidence which would enable me to give any proper consideration to any of the matters under that section it seems to me that I cannot make any order - even if I were otherwise inclined to do so.

17. In taking that course of action I am conscious of the need, in making a parenting order, to consider whether it would be in the child’s best interest to have a meaningful relationship with both of the parents and while I agree that that may be so, “meaningful” must have a relative context in the nature of the proceedings and I have also to take into account, as a primary consideration, the need to protect T from physical or psychological harm.  His removal from his mother forcibly by police would not, in my opinion, constitute a proper concern for his best interests.

18. The other matters set out under s 60CC(3)(a)-(m) are matters about which I have very little, if any, evidence in these proceedings, and I am not in a position to make an order. In addition, I indicate that while I think that this may well be a matter in which the parenting responsibility should be shared between the parents, his Honour appears, for whatever reason, not to have made an order which takes account of that matter, in which case I would have to assume that his Honour correctly interpreted the Act on the basis that there would be an equal shared parental responsibility about matters relating to T’s welfare.

19. If that presumption is to apply; in making any order I would have to give consideration to whether the child should spend equal time with the parents.  That appears to have been a matter his Honour took into account but a matter which I could not, at this point, vary because his Honour has already made that determination.  It is not suggested that has been the subject of any appeal by the father. 

20. Finally, the question that I would be obliged to take into account on the basis that the presumption applies, is that if there is not to be equal time between the parents, that the father should have significant and substantial time with T. That, in the present circumstances, is not “practicable” in the words of the Act and accordingly I decline to make any order varying the existing orders pending the appeal.

21. In this matter I think there is some force in the submission made by Mr Salinas about the impecuniosity of the mother.  This is a matter which I would have thought may well have been within the knowledge of the father but it is fair to say there was no direct evidence about the matters that the mother has stated finally in cross-examination this day, apart from the financial statement filed prior to the commencement of these proceedings. 

22. It seems to me that the father is, in part, the victim in these proceedings of the unfortunate wording of his Honour’s order and that his failure to succeed in his application for contravention is based as much upon the difficulty of the wording of the order as it is upon any evinced demonstration on the part of the mother to comply with what was clearly his Honour’s intention by the orders.  In those circumstances, because the father is also not financially secure, it is inappropriate to make any order for costs and that application is dismissed.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date:  24 July 2007