Moore and Evers (Summary Appeal) - [2014] FamCA 947

FAMILY COURT OF AUSTRALIA

MOORE & EVERS (SUMMARY APPEAL)

[2014] FamCA 947

FAMILY LAW – APPEAL FROM COURT OF SUMMARY JURISDICTION UNDER S 96 – PRACTICE AND PROCEDURE ON EX PARTE APPLICATIONS – The mother appealed from a decree made by a State Magistrates Court being ex-parte recovery and interim change of residence orders relating to children aged 11 and 16 which changed their long term primary residence where there had been no written application for residency change and the circumstances were not such as would normally base such a change without providing procedural fairness to the mother – Hearing de novo – appeal successful and orders made by Magistrate reversed

Family Law Act 1975 (Cth) s 96

Sieling and Sieling (1979) FLC 90-627
Tzenessidis and Tzenessidis & Tenessidis and Skouzis [2004] FamCA 545

Goode & Goode (2006) FLC 93-286
Dundas & Blake [2013] FamCAFC
Doherty & Doherty [2014] FamCAFC 20
SCVG & KLD [2014] FamCAFC 42

APPELLANT:

Ms Moore

RESPONDENT:

Mr Evers

FILE NUMBER:

MLC

5079

2008

DATE DELIVERED:

4 November 2014

PLACE DELIVERED:

Launceston

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

2 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Skerlj

SOLICITOR FOR THE APPLICANT:

Peter Baker & Associates

COUNSEL FOR THE RESPONDENT:

Ms Theoharopoulou

SOLICITOR FOR THE RESPONDENT:

Stuthridge Legal

Orders

UNTIL FURTHER ORDER

Pursuant to s 96(4) of the Family Law Act 1975 (Cth) orders 4 and 5 made by the Magistrates Court on … August 2014 are reversed.
Pursuant to s 96(4)(b) of the Family Law Act 1975 (Cth) the interests, in these proceedings, of the child S born … 2003 be independently represented by a lawyer and it is requested that Legal Aid Commission Victoria arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Melbourne.
Forthwith upon appointment by the said Legal Aid Commission of Victoria or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
Within forty eight (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
The parties or either of them be restrained from abusing, demeaning or belittling the other party in the presence or hearing of the child or the child C born … 1998.
The parties or either of them be restrained from exposing either of the children to verbal abuse, assault, threats or violence.
Both parties be restrained from discussing or allowing others to discuss these proceedings or any aspect of these proceedings in the presence of or hearing of the children.
The father shall return S to the mother by 5.00pm on Friday 3 October 2014.
The order made 23 November 2011 requiring the child C to spend time and/or communicate with the father is suspended pending further order.
These proceedings be transferred to the Federal Circuit Court.

IT IS REQUESTED

Pursuant to s 91B of the Family Law Act1975 (Cth) the Court seeks the intervention of the Victorian State Child Protection Authorities in these proceedings.

IT IS NOTED

The orders made by consent by the parties in so far as the child S is concerned, on 23 November 2011 shall apply as and from 6 October 2014.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS DIRECTED

A copy of these orders and the reasons upon which they are based are forwarded to the Chief Magistrate of Victoria, when the reasons are published.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moore & Evers (Summary Appeal) 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 MELBOURNE

FILE NUMBER: MLC 5079 of 2008

Ms Moore

Appellant

And

Mr Evers

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Evers (‘the father’) made an urgent application for and was granted orders by a State Magistrate for the recovery of the children (‘C’ aged 16 and ‘S’ aged 11). The orders also provided that C and S were to live with him (changing the primary living arrangements of the children) and required Victoria Police to remove the children from the care of Ms Moore (‘the mother’) and place them with the father (‘the Orders’).
The father’s application was filed, heard and the Orders were made the same day, namely … August 2014. This process took place without notice to the mother.
The very next day members of Victoria Police executed the recovery Order and the children were forcibly taken from their home and placed in the care of the father. It was at that time that the mother was first informed of the existence of the parenting proceedings. C voted with her feet and returned to live with the mother. S remained living with the father pursuant to the Orders until that situation was reversed by my orders made 2 October 2014.
The Orders were made in circumstances where earlier in 2014 the child, C had given evidence in the County Court of Victoria to assist the Crown in its prosecution of the father in respect of charges that he raped, recklessly caused serious injury and criminal damage to or about the mother (“the criminal charges”). After a defended hearing in the County Court a jury acquitted the father of the criminal charges.
The proceeding before me is an appeal by the mother against the Orders.
The Orders fell into two parts:-
(a)Orders 1, 2 and 4 which provided a direction to authorities to recover the children and deliver them to the father (‘the recovery orders’); and
(b)Orders 5 and 6 which provide that until further order the children live with the father and the time with the mother be reserved (‘the parenting orders’).
In relation to the recovery orders any appeal against them is moot as the children were recovered by members of Victoria Police on … August 2014 and were given to the custody of the father.
The orders remaining effective were the parenting orders that the children live with the father and the mother’s time be reserved.
This appeal was heard pursuant to the provisions of s 96(4) of the Family Law Act 1975 (Cth) (‘the Act’) and as such was a hearing de novo (from the beginning). Further evidence was adduced to this Court on the re-hearing of the application. It was not argued, but it may have been, that the interlocutory parenting orders and the recovery orders were ultra vires the power of Magistrate Sargent (“the learned Magistrate”) as there were no substantive proceedings in the State Court on … August 2014, only an application in a case. That defect has now been cured by the mother’s application referred to later in these reasons. For the purpose of this appeal, I have treated the Orders as being lawfully made.
The power of this Court under s 96 includes the power to ‘make such decrees as it considers appropriate, including a decree affirming, reversing or varying the decree the subject of the appeal’.
Given the circumstances set out later in these reasons, orders were made on 2 October 2014, reversing the parenting orders. In addition, further orders were made appointing an Independent Children’s Lawyer, restraining the parties’ adverse behaviour in terms of each other and in terms of the children, directing the return of S to the mother and other consequential orders.
For the purposes of the appeal the father now concedes that C is old enough to make her own decisions in relation to the time she may or may not spend with him. Accordingly, that issue was one which did not need to be determined by me. I have suspended the operation of the relevant parenting orders in respect of C.
The issue to be determined was whether the child S, who has been in the father’s care for about six weeks, should continue to live primarily with the mother or whether there was evidence sufficient, on balance and in accordance with the legal principals, for her to move to the primary care of the father.

BACKGROUND

The mother is aged 38 and lives in Town B with her present husband Mr L with whom she has apparently been living for the some years. The mother has one child of a previous relationship, K, who continues to live with the mother.
The father is aged 41 and he lives with his present wife, Ms Evers.
The father and mother first met in mid-1995 and commenced a relationship. There were multiple periods of separation and reconciliation during the relationship. The mother alleges that there is a history of domestic violence. The father denies the alleged violence.
There was ongoing conflict between the mother and father, and they separated a number of times. They finally separated in late 2007. Soon after that separation consent parenting orders were made. The children have lived primarily with the mother most of their lives.
In November 2011 further consent orders were made in the Federal Magistrates Court (as it then was) that the children lived with the mother and spend regular time with the father.
Prior to the making of those 2011 orders the mother made a complaint to Victoria Police of assaults (including sexual assault) allegedly inflicted on her by the father. Victoria Police had initially decided not to take any action against the father.
Subsequent to the making of the 2011 consent orders, there was a review of the mother’s allegations by State prosecution authorities. A decision was then made by the State of Victoria to charge the father. The police took statements from C and the mother and then commenced criminal proceedings. The father was charged and released on bail. One of the father’s bail conditions was that he should not communicate with any of the police witnesses, including the mother and C.
From 2012 until mid-February 2014 the father did not see or spend time with the children.
During the course of that trial both the mother and C gave evidence for the prosecution. After a jury trial in mid-February 2014 the father was acquitted of the charges.
Following the acquittal the mother applied for an intervention order against the father. The father and his new partner cross-applied for intervention orders. Those proceedings were resolved by way of each of the parties giving undertakings without admission. In the course of the negotiation the father made it clear he wished to spend time with the children.
Arrangements were made between about April and August 2014 for the father to see the children. These arrangements at times worked and at other times did not work.
The parenting orders made in the then Federal Magistrates Court on 23 November 2011 remained in place although, given the father’s bail conditions, the time provisions in terms of the father were otiose. The November 2011 orders provided that each of the parents has joint parental responsibility for the children, and that the children live with the mother and spend time with the father (as was set out in order 3(1)).
For the purposes of this appeal the father does not press any time with C. She had run away from his home soon after she was delivered to the father on … August 2014. C had made it clear that she would not live with the father and that she would not be forced to comply with the Orders. At the request of both parents, I have suspended that order pending determination of the substantive application in the Federal Circuit Court.
In mid-2014 officers of the Victorian Department of Human Services (‘the Department’) attended the mother’s home as allegations had been made about violence in the home and drug use by her and her now husband. The Departmental officers investigated those allegations and have now apparently ended their investigations, and are taking no further action.

THE PROCEDURAL HISTORY

By ex parte application filed in the Magistrates Court on … August 2014 the father sought and obtained the Orders[1] including an order for “[an Urgent recovery order for [C] and [S] in accordance with the Family Court orders [sic]”.
[1] Application in a case document 54A.
In support of that application the father relied upon his affidavit filed and sworn the same day. The learned Magistrate made the Orders ex parte which included the recovery order, interim parenting orders directing that the children live with the father and he reserved the mother’s time with the children. The application and proceedings were adjourned to the Magistrates Court on … September 2014. This was presumably to inform the mother of the existence of the application and proceedings and to enable her to put material before the Court.
On … August 2014 the children were recovered to the care of the father by members of Victoria Police, lawfully acting in accordance with the recovery order. Evidence from one of the police officers involved was that the children did not wish to go and were ‘quite upset’.

THE MAGISTRATES COURT DECISION

The decision to change the primary residence of the children was a curious one, given the reasons and consequences I have outlined herein. Such is my concern about the ex parte nature of these Orders and the underlying processes, I have set out as best I can the principles relating to such urgent applications and I have directed that a copy of these reasons and the order returning the primary care of the children to the mother be forwarded to the Chief Magistrate of Victoria. It is a matter for the Chief Magistrate to consider what may or may not arise therefrom.
The law and principles relating to applications for urgent ex parte orders in the context of parenting proceedings under the Act is relatively clear.
Ex-parte orders, such as those sought by the father (to essentially enforce a spend time order where the children were living with the other parent) were inherently dangerous and potentially exposed these children to great risk, particularly given the age and maturity of the children and where the consequences of such a profound change were at best unclear. There seemed little in the father’s filed material which could constitute the exceptional circumstances required to make such orders in the absence of notice and time for the mother to put forward her case. Denial of procedural fairness to the mother should only occur in the most exceptional circumstances. I do not have a transcript of the proceeding on … August 2014 and as such I do not know what other evidence, if any, was placed before the learned Magistrate.
The established principles set out in Sieling and Sieling (1979) FLC 90-627 remain good law, in particular where Evatt C.J and Marshall S.J said at [78,254] (and with which Asche J agreed):-
The general principles are that the Court must be satisfied that the matter is of such urgency that the applicant's interests (or the interests of the child) can be protected only by an immediate order. It is necessary to balance the likelihood of harm to the applicant against the hardship to the respondent of making an order without hearing him. The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity. An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature [emphasis added] that the Court cannot wait even the period of time necessary for short service.
An order restraining dealings in property may have less drastic consequences for the respondent, or the consequences may be such that the respondent can be protected by an undertaking as to damages. Nevertheless, in such cases the need for urgent action by the Court may also be less apparent and the possibility of postponing the matter and bringing it on at short notice should be considered.
The majority went on to say at [78,255]:-
While it is not possible to lay down precise or exhaustive guidelines to cover the many different cases which arise, the matters which the Court should consider when asked to act ex parte include the following:
·the nature and imminence of the risk to the applicant, to a child, to property interests or to a third party;
·any hardship or prejudice to the respondent and children or to any third party which may arise from proceeding to make the order ex parte;
·where the order relates to property, whether there is a need to protect the respondent by requiring the applicant to give an undertaking as to damages;
·the possible consequences of delaying the order until the respondent can be heard, and the steps which could be taken to give notice to the respondent;
·the need to protect the respondent by ensuring that the order is clear in its terms, that it is served within the shortest possible time, that a return date is fixed and that the respondent be informed of his rights to apply to have the matter brought on before the return day.
The approach in Sieling (supra) was approved by the Full Court in Tzenessidis and Tzenessidis & Tenessidis and Skouzis [2004] FamCA 545 where that Full Court said:-
35.Although we would not grant leave to appeal the orders made on 20 March 2003 we would make the following observations. In Sieling and Sieling (1979) FLC 90-627 the Full Court held that the making of ex parte orders must be done with caution and made only where the evidence shows that they are necessary. Evatt C.J. and Marshall S.J. stated at 78,254 that:
“Whenever a Court acts ex parte it is departing from one of the primary rules of natural justice, that each party should be given an opportunity to present his or her case to the Court. (See The Commissioner of Police v. Tanos (1957-58) 98 C.L.R. 383, 395-396; Lonard (1976) FLC 90-066 at p. 75,336.) For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the Court.”
No reasons were provided by either party as to why the learned Magistrate made the Orders including changing the primary residence of the 16 and 11 year old children. There was evidence before the learned Magistrate that the father had been charged with very serious offences, although he was later acquitted of those charges, and that the child C had been a witness for the prosecution in that trial.
The evidence provided by the father in his affidavit about the criminal proceedings was given to the learned Magistrate, albeit in a subjective way.
The father disclosed to the learned Magistrate that there had been allegations of physical, sexual and emotional abuse by him of the mother. There was evidence before the learned Magistrate that both the father and the mother had sought intervention orders against each other after the criminal hearing against the father in the County Court had concluded.
The complaints made by the father upon which the learned Magistrate changed the children’s primary residence were the assertions, in the absence of a contradictor, that his time with the children had been restricted by the mother.
The father had complained that the mother’s new husband, Mr L, had verbally abused the children, threatened to harm the father, his wife and children when they wanted to spend time with the children. The father alleged that C was fragile and had been prescribed anti-depressants. The father provided hearsay evidence about statements allegedly made to student support workers.
The end result of the events in the Magistrates’ Court on … August 2014 was:-
(a)The father attended at court that day and sought an ex-parte order in circumstances where the Court was aware that there had been criminal proceedings taken against him, although he had been acquitted of the charges. One of the prosecution witnesses to those proceedings was a 16 year old child.
(b)The father received the benefit of an order that the children including this 16 year old child, be forced to live with him and time with their mother be reserved. The application itself sought only a recovery.
(c)By the making of the order, Victoria Police were required to take steps to enforce that change of residence.
(d)The mother was given no opportunity to appear, object or to provide any evidence contrary to that of the father before the Orders were made.
(e)There was evidence of the father (whether true or untrue) that the children lived at least some of the time at their maternal grandmother’s home. No notice was given to her of the putative orders.
(f)There was evidence of allegations that the father had been physically, sexually and emotionally abusive towards the mother, albeit denied.
(g)There was evidence that each of the parties had, in that year, taken intervention proceedings against the other.

The proceedings were then adjourned to … September 2014, a period in excess of two weeks, and no specific provision was made for an earlier relisting.
On … August 2014 (the second working day after the recovery order was executed) the mother filed an application and commenced proceedings in the Magistrates Court. She sought and administratively obtained an earlier date, viz … September 2014 (about one week later). She also asked for orders from the Court discharging the ex parte orders made by the learned Magistrate and the return of the children to her care.
That application was supported by an affidavit of the mother filed … August 2014. In that affidavit the mother asserted the following facts:-
(a)There was a history of domestic violence by the father to her, but the father denies domestic violence;
(b)That the mother suffered physical and verbal abuse and says that she was the victim of sexual abuse by the father;
(c)That there was a history of ongoing conflict between the parties;
(d)That the father continued to act in a violent, threatening, intimidating and controlling manner towards herself and the children;
(e)The father’s present wife has assaulted the mother;
(f)She disclosed that the father was acquitted in the County Court of charges of rape, recklessly causing serious injury and criminal damage. During the course of the trial both she and C gave evidence against the father.
(g)The father was charged in March 2012 and did not see the children for a period of around two years.
(h)The father was acquitted of those charges. I take acquittal in the County Court to mean that the jury were not satisfied that the charges had been proved beyond reasonable doubt to the criminal standard.
(i)Both children had previously written to the father telling him that they did not wish to spend time with him; and
(j)The mother had concerns about behaviours of the father’s present wife.
Consequently on … September 2014 the mother’s urgent application came before a different judicial officer, Magistrate Wright, at the Magistates Court. I do not have a transcript of what occurred on that date, but the mother deposes that that learned Magistrate said to her that he had not read her affidavit material and did not intend to read it. The proceedings were then transferred to the Federal Circuit Court, and listed for the sittings commencing 24 November 2014, some three months later.
No further orders were made regarding the parenting arrangements for the children. Consequently the orders of … August 2014 remained in force and S remained living with the father. The untested evidence of the mother which was placed before Magistrate Wright was that the child was upset, her time with the mother and her sisters was being severely circumscribed, and she was not attending school.
If the mother’s evidence is accurate then it is troubling that the Court declined to read her material in circumstances where two children had been removed from their primary carer, on an ex parte basis, a week or so before. If the mother is correct the process is troubling at many levels, not the least that the father filed his application and orders were made, based exclusively on his evidence, on that same day. When the mother urgently replied her material was allegedly not read and the proceedings sent away for three months, leaving ex parte orders in place.

CURRENT PROCEEDINGS

Given that the proceedings were no longer proceedings in the Victorian Magistrates Court but were proceedings in the Federal Circuit Court listed for the circuit commencing late November 2014, the mother filed a Notice of Appeal in the Family Court of Australia, pursuant to s 96 of the Act, which relevantly provides:-
96 Appeals from courts of summary jurisdiction
(1AA)This section does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
Note: Appeals from these decrees are dealt with in section 94AAA.
(1) An appeal lies from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under this Act to the Family Court or to the Supreme Court of that State or Territory.
(1A) An appeal under subsection (1) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.
(2) …
(3) …
(4) The court hearing an appeal under this section:
(a)shall, subject to subsection (5), proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the court of summary jurisdiction; and
(b)may make such decrees as it considers appropriate [emphasis added], including a decree affirming, reversing or varying the decree the subject of the appeal.
(5) …

The mother’s appeal was listed for hearing on 2 October 2014 when it was heard by me. I made orders on that day and published these reasons later.
Given the terms of s 96(4)(a) the hearing is de novo and the onus was on the father to satisfy the Court that the orders initially sought by him ought to be made. There was no argument in relation to the appropriateness or otherwise of the recovery order as it had been executed and any argument or determination in respect of that order would have been moot.

THE LAW IN INTERIM PARENTING MATTERS

The pathway to be adopted by the Court in interim proceedings was set out by the Full Court in Goode & Goode (2006) FLC 93-286 at paragraph 82 where the Court said:-
82. In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Full Court in Dundas & Blake [2013] FamCAFC 133 at paragraph 61 said:-
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted. Given that no one gave any evidence about it, including the family consultant, we do not consider that her Honour could have reached a degree of satisfaction in regard to those facts that could properly have founded a rebuttal of the presumption.
In Doherty & Doherty [2014] FamCAFC 20 the Full Court provided guidance on the application of s 61D and 65DAC on the matter of rebuttal of shared parental responsibility.
In SCVG & KLD [2014] FamCAFC 42 the Full Court said:
73.In our view [82] of Goode makes it clear that that case is not authority for the proposition that a judge must commence his or her deliberations about what interim or final parenting order is in a child’s best interests by reference to s 61DA and, if an order for equal shared parental responsibility is or will be made, to then sequentially address s 65DAA.
74.Self-evidently, the items referred to at paragraphs 82(a) – 82(c) in Goode do not find their source in the Act. Although the orderly disposition of parenting cases would require that these matters are addressed, they cannot form part of a “legislative pathway” as that term is used in that case. However, putting those factors aside, to the extent that in Goode a starting point is identified, paragraph 82(d) points to s 60CC. Although this discussion demonstrates that care is required in the application of the principles that emerge from Goode, what is significant is that in Goode the determination of what order would be in a child’s best interests commenced with the application of s 60CC. It follows that to the extent that the counsel for the father submitted that the primary judge erred because he first addressed s 60CC, he must fail.
75.Given that s 60CC(1) states that the purpose of s 60CC is to identify how a court determines “what is in a child’s best interests” and both s 65DAA(1)(a) and (2)(c) require that the court considers whether equal time or substantial and significant time would be in the child’s best interests, s 60CC drives the application of s 65DAA(1) and (2). Thus, the application of s 65DAA(1)(a) and (2)(c) is reliant upon findings made pursuant to s 60CC in order to determine whether orders of that type would be in a child’s best interests. It is only when the application of findings made pursuant to s 60CC result in an affirmative answer to the questions posed in ss 65DAA(1)(a) and (2)(c) that (subject to compliance with the balance of s 65DAA) the court may make an order for either equal time or substantial and significant time (MRR v GR (2010) 240 CLR 461).

In relation to the child S the competing proposals of the parties in relation to her residence were that:-
(a)on the mother’s proposal the status quo pursuant to the 2011 orders made in the Federal Magistrates Court (as it then was) remain in place; and
(b)on the father’s proposal the child S’s residence be changed.
The issues before the Court are essentially the assertions by each of the parties against the other that the child is at risk of emotional or psychological harm in the care of the other parties’ family.

THE EVIDENCE

The father relied upon the following:-
(a)His application in a case filed in the State Magistrates Court on … August 2014 (document 54A);
(b)His affidavit filed and sworn … August 2014 (document 54B);
(c)A further affidavit of the father filed and sworn 1 October 2014 (document 61);
(d)Affidavit of Ms A filed and sworn 1 October 2014.
The mother relied upon the following:
(a)Her application filed in the Magistrates Court on … August 2014 (document 55A);
(b)Notice of Appeal filed in the Family Court of Australia on 12 September 2014 (document 56).
(c)Affidavit of mother filed in the Victorian Magistrates Court and sworn … August 2014 (document 57).
(d)Affidavit of mother filed in the Federal Circuit Court and sworn 10 September 2014 (document 58).
(e)Affidavit of the children’s maternal grandmother affirmed 26 September 2014.
(f)Affidavit of Leading Senior Constable M sworn 10 September 2014 and filed the same day.
In addition I had before me, and it was common ground, that the order in place between the parties with regard to the children before the order of … August 2014 was a consent order made in the then Federal Magistrates Court (as it then was) on 23 November 2011.

The father

The father relied upon his affidavits and that of Ms A.
Ms A’s affidavit was filed late (the evening of 1 October 2014). Ms A is a twenty two year old friend of the father’s wife Ms Evers. Ms A asserted that, in recent times, she has been a confidant of the child S. Ms A asserted that she is a student of social work at university, although there is no evidence that she is undertaking any therapeutic work in terms of S.
Ms A gave a history of time between the children and their father from May 2014 to July 2014. Ms A provided evidence that after the recovery order was made S stayed at her home and Ms A took her to school the following Monday.
Ms A gave evidence of the child being upset and laid the blame for that upset at the feet of the mother. There was evidence that arrangements had been made for the children to have a holiday in Queensland in the current Victorian school holiday period and that the father determined that S ought not go.
Ms A and the father apparently arranged for S to see a psychologist.
The evidence of Ms A, even taken at its highest, may have warranted an investigation as to parenting arrangements and as to contact but certainly would not have been sufficient to bring about a change of residence.
The father relied upon his further affidavit also filed and sworn the evening before this matter came before me. The evidence upon which the father says that the residence should be changed was his general allegation of verbal abuse and threats contained in paragraphs 42 and 44 of his affidavit of the … August 2014.[2]
[2] Affidavit 1 October 2014, page 8 at paragraph 8.
In his affidavit of 1 October 2014 the father deposes in general form that he has had concerns about the safety of the children whilst in the care of the mother and her husband, and has voiced these to the Victorian Department.
I add at this stage there is evidence from the mother, albeit untested, that there was an enquiry and this has not led to any action by the Child Protection Authorities.
The father asserted that in about June 2014 there was an incident where there was yelling and the mother’s husband, Mr L, punched a hole in the wall, and screamed at C and was otherwise verbally abusive and aggressive to them.[3] Significantly, paragraph 15 was hearsay in a context where no reason was offered why the student support worker could not have provided that evidence.
[3] Ibid page 9 paragraphs 11, 12 and 15.
The father asserted that S does not wish to return to the care of the mother and says this evidence is supported by Ms A.[4] In the context of this evidence the mother asserted that the child does want to come home to her care.
[4] Ibid page 10 paragraph 17.
The father asserted that the mother and Mr L fight all the time, engage the children in the parties’ history, object to the children spending time with him and that C’s elder sister, K, exerts pressure on her in regard to spending time.[5]
[5] Ibid paragraphs 33, 34 and 35.
The father says that S is much better in his care.[6]
[6] Ibid paragraphs 42 to 48.

The mother

The mother’s evidence is contained in her two affidavits, some of which has been outlined earlier. In her first affidavit the mother deposes about the change in circumstances brought about by the recovery of the children on … August 2014.
In her affidavit sworn … August 2014 (about four days after the recovery order), the mother sets out that she and the father had met in 1995 and there were multiple separations and reconciliations between them over the next twelve years. The mother said that the father was violent both during and after the relationship ended and that he harbours resentment towards her husband. The mother claims that the father’s present wife had assaulted her and provided a history of the proceedings, including those in the County Court.
The mother provided details of what she asserted were the endeavours to enable the children to spend time with the father and the concerns she had in relation to that course, including the impact on C. The mother gave details of an enquiry undertaken by the Department and the outcome of that to which I have referred to earlier.
The mother said that there were some issues between her and the father as to where S should live. She asserted that C claimed that she was afraid of the father.
She asserted that the father was going to claim that the child was a missing person and there is clear evidence of ongoing hostility between the parents.
The mother is concerned that the father and his wife have been keeping the children under surveillance. This apparently came to a head on 19 August 2014 when S apparently sent a text to the father saying she did not wish to spend time with him.
On … August 2014 the police arrived at the mother’s house with the court orders in circumstances where the mother had no court documents nor was aware of the proceedings. This was not in issue. The mother asserted neither of the children wanted to go with the police.
The mother received some text messages from C saying she had spent the weekend away from the father’s home and stayed with friends.
The mother asserted that neither of the children went to school on the following Monday and Tuesday. The Tuesday was the date that the affidavit was sworn. The mother took issue with regard to assertions made by the father in his material.
In her second affidavit filed 10 September 2014 the mother reported that she had seen S at school and that the father had indicated he would only allow S to spend time with the mother if Mr L was absent. The mother describes meeting with the school and asserted that the child asked if she would take her home.
The mother said the child complained that the father would not allow her to travel to Queensland on a previously arranged holiday. The conflict between the parties continues.

The maternal grandmother

I had regard to the affidavit of the children’s maternal grandmother Ms D Moore filed 26 September 2014, which was supportive of the children continuing to live with the mother.

Leading Senior Constable M

I had regard to the affidavit of Leading Senior Constable M filed the 10 September 2014.
The evidence of Leading Senior Constable M, one of the police officers involved in the recovery of the children, was that the mother did not interfere with the removal of the children, although she was not happy about that circumstance, she endeavoured to calm the situation and facilitate the operation of law. Leading Senior Constable M observed the following:-
4.Neither [C] nor [S] wanted to go to their fathers. They were definite about that and were quite upset. It was quite a distressing situation. I was of the view that we were required to enforce the court order although we did not attempt to physically detain the girls. We negotiated with the girls until around 7.15pm when, with the encouragement of their mother, ultimately the girls agreed to go with us. [The mother] was quite level headed in dealing with us but clearly was not happy at the order to have the girls removed from her care. She did however eventually assist in convincing the girls that they should go with us.

If that evidence of Leading Senior Constable M is accurate, that is to the mother’s credit.

CONSIDERATION OF THE SECTION 60CC FACTORS

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

It is clear that there is a benefit to the child having a meaningful relationship with the mother. Insofar as the father is concerned there is an issue in this regard given the history asserted by the mother. The question is whether the child S is at risk of harm given the provisions of s 60CC(2)(b), particularly having regard to the provisions of s 60CC(2)(A).

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

There is evidence from broader families in the both the maternal and paternal household. Each of the parties alleges that the spouse of the other constitutes a risk to the child S in the form of verbal, psychological and at times physical abuse of the child or the parent with whom that party lives.
Given the contradictory evidence of the respective camps there is concern that the children may be a risk in either or both homes. The investigation by welfare authorities and the circumstance that the children have been primarily cared for by the mother over many years provides some comfort in terms of the status quo until there is further objective evidence. The reluctance of the children to leave the care of the mother is also of some but not overwhelming weight.

Section 60CC(3)(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

I have before me the views of S, each expressed in a partisan way by each of the parents and their respective supporters. The mother states that the child has lived with her and has expressed a desire to return to her primary home. The father and Ms A asserted that S was much happier and more settled in the father’s home and ought to be able to remain in that circumstance. Given the history, how such comparison could be legitimately made is unclear.

Section 60CC(3)(b) the nature of the relationship of the children with:

(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);

As I have said earlier, the children have lived with the mother as their primary carer most of their lives. The children have a close relationship with each other and their elder sister. There was evidence of S attending her sister’s debutant ball. There was evidence that the children are part of the broader family with the mother’s husband and the children’s maternal grandmother.
S had spent time with the father up to the time of the recovery on … August 2014. However, the time with the father had been restricted given the criminal proceedings and the conflict between the parties, the full nature of which will no doubt be determined after a final hearing.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;

The father had no contact with the children for a period of about two years whilst the criminal proceedings were being determined. That was a condition of his bail and it was appropriate that he abided by that condition.
There is an issue as to the extent in which each parent has sought and/or encouraged time with the child and the circumstances surrounding same.
Each of the mother and father in their own ways has restricted time between the children and the other parent. As to the appropriateness or inappropriateness of those steps it will be a matter for final hearing or a better informed interim hearing.

Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

There was no significant evidence in relation to this factor.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The children were living with the mother, her husband and each other until … August 2014. They had limited time with the father and there was conflict between the parents. It is not clear what impact the change would have in terms of the children’s separation from the mother, C and the mother’s broader family. It is not clear what impact there has been on S in terms of her separation from the father since 2012. These are matters for final hearing or a better informed interim hearing.
There was an impact on the child in terms of the sudden changeover and in terms of the circumstances of that changeover and S’s attendance at school over the following weeks.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

There is little evidence in relation to the practical difficulty and expense other than the high conflict that has existed between these parents throughout the lives of the children.

Section 60CC(3)(f) the capacity of:

(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

In terms of the mother there were significant complaints made by the father and there has been investigation by the Department. Nothing has arisen from those investigations, although that in itself does not exclude an underlying problem. However, it is comforting in that respect.
The evidence of Victoria Police, if accepted, is that the mother was abiding and facilitated the operation of the children’s recovery in circumstances where she thought it was incorrect. She then adopted a sensible approach to the return of S through legal process, although the father asserted that she encouraged the child C to run away.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

S is aged eleven. She is apparently a school student representative and seems to have a good relationship with her elder sisters, the mother and the mother’s family. The nature of her relationship with the father is unclear at present.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant factor.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

The father can be and should be criticised for making an ex parte application to the Magistrates Court bringing about the change of the parenting arrangement. Once that took place, he adopted a difficult stance including restricting S’s attendance at school, seeing her mother and sisters, and preventing her from going on a planned holiday to Queensland with the mother.
Given the conflict between the parties there are clear doubts about either parent exhibiting strong responsibility to parenthood in respect of this child. However, the evidence is at a state where no meaningful findings can be made other than to express the concerns that are set out elsewhere in these reasons.

Section 60CC(3)(j) any family violence involving the child or a member of the child's family; and

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family, any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;

There are significant issues of family violence and there are family violence undertakings between the parties. The full nature of those is yet to be determined, but they seem to cover a period of years.
Given the evidence before me, on balance and given its limitations, I am not satisfied that a change of residence is appropriate in the present circumstances and at this time. Accordingly, I have ordered that the child S return to the care of the mother and I have noted that the times she spends with the father will be in accordance with the orders made in the Federal Magistrates Court (as it then was) in 2011.
I need and I have endeavoured to address the question of violence. I have made orders against both parties to restrain the violent and abusive behaviours which the other party alleges. This is not to be taken that it is a finding one way or another. This is a protective device.
Given that S is seeing both parents and given that both parents are not reluctant to report that which they say the child says, I am satisfied that if there are issues of violence or breach of the orders it will be brought to the notice of the Court by one parent or the other.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

This is not a relevant consideration as these matters will be further considered in the Federal Circuit Court later this year.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.

I have considered all of the evidence before me without making formal findings but being conscious of the assertions made by either party and I have taken particular note of the untested evidence of Senior Constable M.

CONCLUSION

This is a matter where there is in place an order for equal shared parental responsibility. However, in the context of the interim application given the allegations of violence, abuse and intimidating behaviour and given the factors, albeit set out in a circumscribed way pursuant to s60CC of the Act, this is not a case where there should, at this time, be a change of residence for S.
I considered equal time and then I considered significant and substantial time. However, in the present difficult circumstances neither of those approaches is at present in the best interest of S.
The time S spends with the father and the nature of the broader communication between the child and the father needs to be considered in the light of social science evidence and with the child being represented by an Independent Children’s Lawyer.
Given the high levels of conflict, the allegations of abuse and the history of the allegation of rape, I am satisfied that an Independent Children’s Lawyer ought to be appointed in this case so that the child S’s views and concerns can be objectively ascertained and evidence objectively obtained.
I am concerned that each party is sending S to a psychologist of their choosing, which may or may not be in the child’s best interests. At the very least the Independent Children’s Lawyer will facilitate and harmonise that process.
I am empowered to make these orders given the wide provisions of s 96(4) of the Act. Otherwise the proceedings are before the Federal Circuit Court and they are listed for hearing on 21 November next. This Court has no power to uplift nor does it seek to uplift these proceedings.
It will be a matter for the Federal Circuit Court as to whether family reports or other reports are ordered. It is not for me to interfere in that process although it was appropriate for me to re-determine the application made by the father on … August last.
The orders transferring the proceedings to the Federal Circuit Court the following week were not the subject of any appeal before me.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 November 2014.

Associate:

Date: 4 November 2014