McQueen and Daube

[2018] FCCA 2728

FEDERAL CIRCUIT COURT OF AUSTRALIA

McQUEEN & DAUBE [2018] FCCA 2728

Catchwords:
FAMILY LAW – Parenting – recovery order.

Applicant: MR MCQUEEN

Respondent: MS DAUBE

File Number: DGC 1957 of 2007

Judgment of: Judge Harland

Hearing date: 18 September 2018

Date of Last Submission: 18 September 2018

Delivered at: Melbourne

Delivered on: 18 September 2018

REPRESENTATION

The Applicant:  In person

The Respondent: No appearance

ORDERS

1. The mother return [X] born 2007 and [Y] born 2005 (“the children”) to the father’s home by 12:00pm tomorrow 19 September 2018.

2. If the mother does not return the children pursuant to Order 1 herein, the father is to contact the National Enquiry Centre on 1300 352 000 and a Recovery Order will issue in Chambers, noting that the Australian Federal Police will be asked to recover the children and return them to the father.

3. The father be granted liberty to apply with respect to Order 1 herein.

4. The matter be adjourned to the Duty List on 13 November 2018 at 9:45am.

5. All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >

   The mother be emailed a copy of these orders by my Chambers today.

6. Pursuant to s.68L(2) of the Family Law Act1975, the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   a.forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

   b.within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent  children’s lawyer copies of all relevant documents relied upon;

   c.the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   d.the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

7. The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the documents produced by the Department of Health and Human Services in response to the Notice of Risk filed 11 September 2018 in these proceedings.

8. The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

AND THE COURT NOTES:

A.The mother did not attend Court today and was not contactable by telephone (several attempts of which were made over the course of the morning), despite initially requesting to attend by telephone and despite sending lengthy emails to Chambers.

B.Parties are expected to comply with the previous orders. If either party seeks a change to these orders, they must file an application.

C.The information produced by the Department pursuant to order 5 herein is confidential and cannot be disclosed to any other person without an order of this Court.

D.Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1957 of 2007

MR MCQUEEN

Applicant

And

MS DAUBE

Respondent

REASONS FOR JUDGMENT

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. This is an application for a recovery order with respect to two children, [Y], born 2005, and [B], born 2007.  This matter has a long history.  Final orders were made in 2009 which provide for the children to live with the father and spend time with the mother on three out of four weekends and half school holidays and other special occasions.  The orders were made by consent.  I note that there was an Independent Children’s Lawyer involved in those proceedings.

3. I am not going to set out all the history of what has occurred since final orders were made, except to note that what is clear is that in the past couple of years there have been tensions between the parties.  The communication between the parties is not ideal. 

4. From what I have read much of the issue relates to logistics. I note the mother has not put on material today, has not attend Court today and is not contactable by telephone.  The parties live about 100 kilometres apart.  The parties do not have a lot of money, so there is a real issue of practicality and logistics of these boys going back and forth to spend time with both parents.

5. There has previously been an application for a recovery order, and there was also the contravention proceeding where the orders were amended to clarify the position with respect to school holidays and also to address birthday parties and other similar occasions.

6. The father brings this application in circumstances where he says the day he was due to deliver the children to the mother’s home, he was very unwell and was not fit to drive.  He says that he attempted to make arrangements for someone else to deliver the children for him, but was unable to do so, and contacted the mother via text about that issue.  He sets out in his affidavit what he says are some of the texts, and I have had the benefit of looking at his phone and reading the exchanges between them given that the mother complains that the father redacted the texts.

7. It is clear from the text exchange that the mother complains that the father has breached orders, therefore she will also do so. She complains about the costs of travel and it not being fair. None of this focuses on the best interests of the children.

8. The reason why this is of some significance is the mother has written lengthy emails to chambers, at first seeking to attend by telephone and, when that was refused, sending a further email saying that she is ill and not able to attend.  Today she has not been contactable by phone, and the court has tried on several occasions this morning and she has been emailed by the court. 

9. Her complaint seems to be that the father’s affidavit doesn’t reflect the full text exchanges and it is for that reason that I asked to look at the father’s phone.  What seems pretty clear is that there is an absence of there being issues of risk of the children in the father’s care.  Rather, there are complaints about breaches of orders or difficulties with handovers, and it really seems to be, in a sense, a bit of a tit for tat situation.  

10. What is of real concern is that the boys have not been to school since the mother withheld them on the 31 August 2018.  There has been many texts where the father has asked when she is planning to bring the children home.  There seems to be an issue about affordability of the travel.  That does not explain why she has failed to return the boys and why they are not attending school. 

11. She says that the father knows that the children are not at risk in her care.  That is not the point.  These children must be aware of the tension between their parents and the fact that this keeps happening.  One must wonder what on earth the children are thinking about not being in school for two weeks. It is clear that there are issues.  I am not going to say that either side is innocent or either side is completely at fault, and that is not the point. Something has got to change.

12. It may well be that the current arrangement is not workable in that the parties simply cannot afford the three weekends out of four and the amount of travel that that involves, but that means dealing with it properly, not by way of unilateral action by either party. 

13. The mother leaves me with no choice to make an order for a recovery of the children.  What I will do is to direct that my chambers email her a copy of the orders made, because I am not confident that she would access the Court portal in the usual course.  I am going to direct that she deliver the children to the father’s home by 12:00pm tomorrow and that if she fails to do so, then a recovery order will issue.  That, of course, will involve the federal police having to get involved, which will involve further trauma and stress to these children. 

14. One option would simply be to make that order and not bring the matter back to court. As there is no substantive application on foot seeking to vary the orders.  It is vitally important that there is not a unilateral withholding of the children, and the children need to be going to their school.  If the father or the mother wishes to change the orders, then they needs to make an application.  But if there are – I make it very clear that I expect both parties to comply with the orders.

15. Now, there will be occasions where something unexpected happens and one party is unable to comply or there is, you know, an emergency or difficulty.  But it’s very unfortunate that, from reading the texts – and given the mother was complaining that the father has been redacting texts, what is pretty clear from here is this:  she is complaining about things not being fair for her and about cost and about father breaching, therefore she is going to breach.  None of this focuses on the kids’ interests in the slightest. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 24 September 2018