MOREAU & TREJO
[2009] FMCAfam 1184
•14 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOREAU & TREJO | [2009] FMCAfam 1184 |
| FAMILY LAW – Parenting – interim relocation application – documentary evidence of acquiescence. PROCEDURAL – Request to attend by electronic communication – request denied and notification given by registry. |
| Family Law Act 1975, Part VII ss.61DA, 65DAA (5), 65DAC |
| Burke & Burke [2009] FMCAfam 984 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2008) 37 Fam LR 518 Morgan v Miles (2008) 38 Fam LR 275 Taylor v Barker (2008) 37 Fam LR 461 Vasser v Taylor-Black (2008) 37 Fam LR 256 Wadsworth & Gale [2009] FMCAfam 537 |
| Applicant: | MR MOREAU |
| Respondent: | MS TREJO |
| File Number: | CAC 1234 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 14 September 2009 |
| Date of Last Submission: | 14 September 2009 |
| Delivered at: | Canberra |
| Delivered on: | 14 September 2009 |
REPRESENTATION
| Advocate for the Applicant: | No appearance |
| Solicitors for the Applicant: | Elizabeth Fleming & Associates |
| Advocate for the Respondent: | Ms Mullard |
| Solicitors for the Respondent: | Kelly, Mullard & White Solicitors |
ORDERS
That the Orders dated 24th August 2009 be discharged.
That the children [X], born [in] 2003, and[Y], born [in] 2005 (“the children”) be returned to the Mother by 15th September 2009 at a time and place to be arranged between the parties.
That the children live with the Mother.
That the Mother have sole parental responsibility for the children.
That the Mother has responsibility for decisions as to the children’s day to day care, welfare and development when the children are living with or spending time with her.
That the Father has responsibility for decisions as to the children’s day to day care, welfare and development when the children are spending time with him.
That the children spend time with the Father as follows:-
(a)For the first half of each of the gazetted Queensland School holidays, in even numbered years, commencing at 9:00am on the first day of the school holiday period until 5:30pm on the Sunday closest to the middle of the school holidays, PROVIDED THAT the Father provides four (4) consecutive weekly supervised urinalysis results that are clean of any drug detection to the Mother, no less than seven (7) days prior to the date that the Father is due to spend time with the children;
(b)For the second half of each of the gazetted Queensland School holidays, in odd numbered years, commencing at 9:00am on the Saturday closest to the middle of the school holiday period and concluding at 5:30pm on the Friday prior to the resumption of school PROVIDED THAT the Father provides four (4) consecutive weekly supervised urinalysis results that are clean of any drug detection to the Mother, no less than seven (7) days prior to the date that the Father is due to spend time with the children; and
(c)Such other times as agreed between the parties.
That in the event that the Father fails to provide four (4) consecutive weekly supervised urinalysis results that are clean of any drug detection to the Mother, no less than seven (7) days prior to the date that the Father is due to spend time with the children in accordance with Order 7, then the Father’s time with the children will be forfeited for the school holiday period, and he will not be entitled to make up time with the children.
That for the purposes of the implementation of these Orders, the Father is to collect the children from the Brisbane Domestic Airport Terminal, unless other agreed, at the commencement of his time with the children.
That for the purposes of the implementation of these Orders, the Father is to deliver the children to the Sydney Domestic Airport Terminal, unless otherwise agreed, at the conclusion of his time with the children.
That the children are to have the following parental communication:-
(a)Reasonable telephone conversation with the Father as the children may request and the Mother will facilitate the making of such telephone calls;
(b)Reasonable telephone conversation with the Mother as the children may request and the Father will facilitate the making of such telephone calls;
(c)Privacy during telephone conversation with both parents and each parent is to ensure that they facilitate this.
That both parents will ensure that they keep each other informed as soon as it is reasonably practical of:-
(a)Any medical problem or illness suffered by either of the children whilst in each parent’s care;
(b)Any medications that have been prescribed for either of the children;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding either of the children;
(d)Any significant social, school or religious functions which either of the children are to attend;
(e)Their current contact telephone numbers (including both landline and mobile if applicable) and their current residential address;
(f)Any other important matters relevant to the welfare of the children.
That each parent will authorise any relevant health or educational professional to provide the other with copies of school reports and any other reports, information and documentation relating to the health and education of the children.
That the parents will share equally the travel costs associated with transporting the children in between the Mother and Father’s respective residences, with full payment to be made no later than fourteen (14) days prior to the date of the children’s intended travel date.
That the matter be adjourned to 16th December at 12:00 noon and Ms Mullard is granted leave to attend by telephone on this occasion.
That liberty be granted to the parties to have the matter re-listed on
21 days notice.
AND IT IS NOTED THAT There is a diary note on the file that records advice to the applicant’s legal representative Mr Kibbey that he did not have leave to attend this hearing by telephone. In the interests of procedural fairness to the Respondent Mother, the Court proceeded in the Applicant’s absence.
IT IS NOTED that publication of this judgment under the pseudonym Moreau & Trejo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1234 of 2009
| MR MOREAU |
Applicant
And
| MS TREJO |
Respondent
REASONS FOR JUDGMENT
A. Introduction
These reasons proceed in two parts. For the sake of completeness, the first part records the procedural history; the second part (“C. Orders Sought, Jurisprudential Principles, & Matters Relevant to the Orders of 14th September 2009”) records the reasons, revised from the Transcript, for the orders made on 14th September 2009.
B. Procedural History
These proceedings commenced with an ex parte application for a recovery order for the return of [X] (aged 6) and [Y] (aged 4) to their Father, the Applicant.
Mr Moreau annexed to his affidavit in support of the application, affirmed on 27th July 2009, a copy of orders made in the [B] Local Court. Those orders, dated October 2008, provided that the children live with their Mother. Mr Moreau said that, at that time, he was unrepresented.
He next contended that in April 2009, the Respondent Wife, Ms Trejo, said to him that she wished to relocate to Queensland with the children. He deposed to saying to her that he did not agree and that he wanted to be able to see the children.
He deposed that, after this conversation, Ms Trejo did not allow him to spend time with the boys.
Leaving aside various correspondence between lawyers, also annexed to his affidavit, Mr Moreau deposed to a conversation with the Respondent in which she is alleged to have said words to the effect that she wished to take the children to Queensland for a two week holiday to visit her Mother. Mr Moreau confirmed that he agreed to this holiday. He contributed financially to the cost of the plane tickets. He said that Ms Trejo said that she would buy the return air tickets.
In para.14 of his affidavit, Mr Moreau deposed to the Respondent advising him that she and the children were staying in Queensland.
Mr Moreau confirmed that he never consented to Ms Trejo and the children remaining in Queensland.
He deposed to not having seen the children since 13th July 2009.
On 5th August, with leave, Mr Kibbey (for Mr Moreau) attended by telephone. On that occasion, Commonwealth information orders were made, directed to Centrelink and Medicare. As well, there was a notation to those orders requiring Mr Kibbey to make inquiries of
Ms Dummer of Legal Aid NSW, who had formerly represented the Respondent, regarding service of the application and supporting papers.
In the light of what follows, one may observe or not unreasonably ask the following questions: (a) why an information order was required when it is fairly clear that Mr Moreau knew contact details of
Ms Trejo, and (b) whether Mr Moreau had been sufficiently candid in the information put before the Court in seeking such relief?
By letter dated 21st August, which was received in the Registry on 24th August, Mr Kibbey sought leave to attend by telephone. This leave was denied on the basis that a substantive application was to be heard and such matters are not dealt with by legal representatives attending by telephone, except in the more urgent and dire of circumstances.
Mr Kibbey was advised by the Court Registry to secure an agent for the interim hearing. There is a note on file to this effect.
Accordingly, on 24th August, Mr McKeown of Counsel appeared on behalf of the Applicant. There was no appearance by or on behalf of the Respondent. Orders were made regarding service of process and, in the absence of the return of the children, a recovery order was to issue.
There is communication on the Court file from my Deputy Associate, faxed to Mr Kibbey dated 25th August, confirming the orders of 24th August but noting that the Recovery Order would not be executed without advice from Mr Kibbey regarding the whereabouts of the children.
The matter was re-listed for 14th September at 4.15pm.
The children were returned to Mr Moreau.
By letter dated 25th August, again Mr Kibbey sought leave to attend the next date the matter was before the Court by telephone.
There is a note on the Court file from a Court Registry staff member confirming that Mr Kibbey’s office was advised on 27th August that leave to attend by phone was not granted and that an agent would have to be engaged.
By letter dated 9th September, Ms Mullard (who was now acting for
Ms Trejo) forwarded to the Court a Response, Application in a Case and supporting affidavit for filing. These documents ultimately were filed on 11th September 2009.
The Response sought orders that (a) discharged all previous orders, (b) the children live with their Mother, (c) the Father to have school holiday time with the children, but that this time is to be dependent on the Father providing four consecutive weekly supervised urinalysis results that are clean of any drug detection. The specific orders sought by Ms Trejo are set out later in the judgment.
The Application in a Case sought orders that mirrored those set out in the Response, but with the additional orders that relevantly provided that the matter proceed ex parte and that the children be permitted to remain living with their Mother in Queensland.
The affidavit filed by Ms Trejo deposed to significant violence towards her during the relationship with Mr Moreau, and to significant drug use, mostly of marijuana. Ms Trejo attested to some of the violence being witnessed by the children, as well as her concerns about the children starting to adopt some of their Father’s aggressive behaviour.
Ms Trejo also deposed to threats and abuse continuing towards her from Mr Moreau after the parties separated. Ms Trejo deposed to finding a petrol bomb next to her car and damage to the car itself. These, and other matters, were reported to the police. An AVO was taken out against Mr Moreau.
Initially, there had been an informal agreement between the parties in relation to Mr Moreau spending time with the children. Upon receiving a letter from Mr Moreau’s solicitors, Ms Trejo deposed to taking that letter immediately to Legal Aid.
After discussion between solicitors, and leaving aside various other details, Terms of Settlement were negotiated and signed by the parties and made in the [B] Local Court on 21st October 2008. A copy of those Orders was annexed to Ms Trejo’s affidavit as they were to
Mr Moreau’s affidavit.
Summarily stated, Ms Trejo deposed to Mr Moreau continuing to harass her from time to time and to insist on time with the boys that was not in accordance with the October 2008 orders. She also deposed to some informal variation of the orders as agreed between the parties. This is also to say that, on at least a semi-regular basis, the parties have been communicating. To do so, they obviously had relevant contact details.
Also summarily stated, Ms Trejo deposed to the youngest child, [Y], acting in a concerning fashion (as set out in her affidavit) and seeking advice from the police. She alleged that the police advised her that [Y]’s conduct might be taken to be evidence of sexual abuse and that she should stop the children spending time with their Father until the matter had been investigated.
Ms Trejo also deposed to advising Mr Moreau that she was missing her family in Queensland.
Ms Trejo deposed that, upon Mr Moreau being advised that the relocation would take place in the second half of 2009, he advised her that he would also relocate to Queensland.
In par.57 of her affidavit, Ms Trejo deposed to a conversation with
Mr Moreau whereby he is alleged to have said about the relocation to Queensland: `I’m not very happy about it, but you do what you want.’
Ms Trejo also deposed to having a number of telephone conversations with Mr Moreau, and in none of them (she says) has he protested about the Queensland relocation.
Most tellingly, Ms Trejo attached a hand-written note to her affidavit (annexure C) from Mr Moreau, dated 30th August 2009 in which he confirmed that Ms Trejo and the children could move to Queensland, and that they did so `with his knowledge.’ In the same note he confirmed that he would `take off the recovery order in place’ so that Ms Trejo and the children could relocate interstate.
Ms Trejo also deposed to a number of telephone conversations involving Mr Moreau in which he is alleged to have said that he had secured a job at [workplace omitted] in Brisbane, and that he would be relocating to Brisbane in November 2009.
Ms Trejo also deposed to visiting Mr Moreau in early August after packing up her goods for the move to Queensland and that, on that occasion, he gave her gifts for the boys for their birthdays. On no occasion, she said, was there any objection to her having relocated with the boys to Queensland. As well, Ms Trejo said that Mr Moreau had never advised her of any court proceedings which he had instituted.
Ms Trejo deposed to being the children’s primary carer. This seemed to be not disputed.
On 14th September 2009, Ms Mullard appeared on behalf of Ms Trejo. There was no appearance by or on behalf of Mr Moreau. Ms Mullard’s firm is based in [N]. Orders were made that day.
I understand that Mr Kibbey made an inquiry on the afternoon of
14th September of the Court’s National Enquiry Centre about attendance by telephone. I understand that he was advised that, in accordance with previous advice from the Registry, telephone leave had not been granted. A notation was placed on the orders made on that day regarding leave to attend not being granted.
It is also the case that inquiries were made of my Associate by
Mr Kibbey in the minutes leading up to the interim hearing about him being granted leave to attend by telephone. He was advised again that, in accordance with the advice from the Registry to his office, such leave would not be granted.
More recently, in an affidavit filed on 19th October 2009, Mr Kibbey confirmed that his office had been notified that telephone leave had been refused, that this information had been confirmed to Mr Kibbey by email from a person employed at his office, but that he does not recall reading this email.
Curiously, in the same affidavit, Mr Kibbey contends that he “was never directly advised by the Court that leave had been refused.” If this means that the Court is required to ensure that Mr Kibbey must be advised personally of any relevant information, as opposed to a message being left with his office, such a proposition cannot be sustained.
If correct, such a course of `direct contact’ would require each and every solicitor and Counsel to be contacted personally by the Court in relation to each and every application or mention, in every matter, before the Court. Such a proposition (if actually advanced by
Mr Kibbey) is untenable. An appropriate, documented message left at the offices of the solicitor on the record is both standard practice and common sense.
C. Orders Sought, Jurisprudential Principles, & Matters Relevant to the Orders of 14th September 2009
The Applicant sought interim orders for a recovery order and a reportable family conference in his Initiating Application filed on
30th July 2009. As noted above, the children were returned to
Mr Moreau pursuant to the Orders of 24th August 2009. No further Interim Minute of Orders Sought or Amended Application was filed by the applicant prior to the interim hearing on 14th September 2009.
For her part, Ms Trejo sought the following interim orders in her Response filed on 11th September 2009:
1.That all previous Court orders be discharged.
2. That the Mother have sole parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2005.
3. The Mother has responsibility for decisions as to the children’s day to day care, welfare and development when the children are living with or spending time with her.
4. The Father has responsibility for decisions as to the children’s day to day care, welfare and development when the children are living with or spending time with him.
5. The children live with the mother.
6. The children spend time with the Father as follows:-
a.For the first half of each of the gazetted Queensland School holidays, in even numbered years, commencing at 9:00am on the first day of the school holiday period until 5:30pm on the Sunday closest to the middle of the school holidays, PROVIDED THAT the Father provides four (4) consecutive weekly supervised urinalysis results that are clean of any drug detection to the Mother, no less than seven (7) days prior to the date that the Father is due to spend time with the children;
b.For the second half of each of the gazetted Queensland School holidays, in odd numbered years, commencing at 9:00am on the Saturday closest to the middle of the school holiday period and concluding at 5:30pm on the Friday prior to the resumption of school PROVIDED THAT the Father provides four (4) consecutive weekly supervised urinalysis results that are clean of any drug detection to the Mother, no less than seven (7) days prior to the date that the Father is due to spend time with the children; and
c.Such other times as agreed between the parties.
7. In the event that the Father fails to provide four (4) consecutive weekly supervised urinalysis results that are clean of any drug detection to the Mother, no less than seven (7) days prior to the date that the Father is due to spend time with the children in accordance with Order 7, then the Father’s time with the children will be forfeited for the school holiday period, and he will not be entitled to make up time with the children.
8. For the purposes of the implementation of these Orders, the Father is to collect the children from the Brisbane Domestic Airport Terminal, unless otherwise agreed, at the commencement of his time with the children.
9. For the purposes of the implementation of these Orders, the Father is to deliver the children to the Sydney Domestic Airport Terminal, unless otherwise agreed, at the conclusion of his time with the children.
10. The children are to have the following parental communication:-
a.Reasonable telephone conversation with the Father as the children may request and the Mother will facilitate the making of such telephone calls;
b.Reasonable telephone conversation with the Mother as the children may request and the Father will facilitate the making of such telephone calls;
c.Privacy during telephone conversation with both parents and each parent is to ensure that they facilitate this.
11. Both parents will ensure that they keep each other informed as soon as it is reasonably practical of:-
a.Any medical problem or illness suffered by either of the children whilst in each parent’s care;
b.Any medications that have been prescribed for either of the children
c.Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding either of the children;
d.Any significant social, school or religious functions which either of the children are to attend;
e.Their current contact telephone numbers (including both landline and mobile if applicable) and their current residential address;
f.Any other important matters relevant to the welfare of the children.
12. Each parent will authorise any relevant health or educational professional to provide the other with copies of school reports and any other reports, information and documentation relating to the health and education of the children.
13. The parents will share equally the travel costs associated with transporting the children in between the Mother and Father’s respective residences, with full payment to be made no later than fourteen (14) days prior to the date of the children’s intended travel date.
For (a) the record, (b) the purposes of jurisprudential context, and (c) general statement of principle, the following cases are directly relevant to the application before the Court.
For the sake of expedition, formally I incorporate the comments of Brown J in Mazorski v Albright in relation to her Honour’s “twin pillars’ summary of the responsibilities of the Court as prescribed in Part VII of the Act,[1] and Boland J’s discussion of principles applicable in relocation cases in Morgan v Miles.[2]
[1] (2008) 37 Fam LR 518 at [3] – [6].
[2] (2008) 38 Fam LR 275, especially at [72] – [81]. Boland J was here sitting as the Full Court.
There are also a number of recent relocation judgments - interim and final - which I have delivered. Again for the sake of expedition, I incorporate into these reasons the relevant parts of those judgments (i.e. the discussion of principles) into these reasons. I have in mind the judgments in Wadsworth & Gale and Burke & Burke.[3] The last-named judgment involved an interstate relocation. I will come back to Wadsworth & Gale shortly.
[3] Respectively, [2009] FMCAfam 537, and [2009] FMCAfam 984.
I note also the principles discussed by Dessau J in M v S, and by the majority judgment of the Full Court in Taylor v Barker.[4]
[4] Respectively, (2008) 37 Fam LR 32, and (2008) 37 Fam LR 461.
I turn to consider a significant aspect of the evidence in this case in the light of my discussion of estoppel and other matters in Wadsworth & Gale.
In that case, I noted a course of conduct by the Father that entitled the Mother to rely upon and make certain decisions in relation to parenting of the child involved in those proceedings.
This case is somewhat similar because there is documentary evidence before the Court in the form of Mr Moreau’s faxed letter to Ms Trejo dated 30th August 2009 whereby he confirmed that she, and the children, may relocate to Queensland.
I have the greatest difficulty in allowing one party to renounce or to renege on what has been plainly put in writing to the other parent, and upon which that parent has understandably relied.
As I have noted, annexure C to Ms Trejo’s affidavit filed on 11th September is headed “[location omitted], 30 August 2009”, in which the Applicant Father confirmed his agreement to Ms Trejo and the “two kids, [X] and [Y] leaving in” - I take that to mean “living in” – “... Queensland with my knowledge.” In that same letter, the Applicant confirmed the removal of the recovery order.
In Morgan v Miles Boland J described, at [74], the importance of the Court ensuring that there be “the careful exercise of discretion to determine the appropriate order to be made.” Her Honour went on to state, at [75] and [77]:[5]
It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
… The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
[5] See also Boland J’s extensive further discussion of steps to be considered in relocation cases, Morgan v Miles (2008) 38 Fam LR 275 at p.290 [79].
In my view, the concerns of Boland J in Morgan & Miles have been, in effect, superseded by the acquiescence of, if not specific agreement with, Mr Moreau, notified in writing (by fax dated 30th August 2009) to Ms Trejo, that she and the boys may relocate to Queensland.
In my view, (a) until the issues of violence and use of drugs that have been raised by Ms Trejo have been properly addressed, (b) there has been a family report prepared, and (c) given the geographical distance between the parties, I do not see that it is in the boys’ best interests for the presumption in s.61DA to apply.
Indeed, on the authority of the Full Court in Vasser v Taylor-Black,[6] I would be (and should be) highly reluctant to make too many orders until there is an appropriate Report before the Court.
[6] (2008) 37 Fam LR 256.
While I am bound formally to consider the “legislative pathway” prescribed by the relevant statutory and judicial jurisprudence, there is little to which I can formally attend in the circumstances of the case. But for the documentary evidence before the Court, it is essentially a “he said – she said” situation until a final hearing and the other matters attended to noted above.
Moreover, given the current localities of the parties, I do not see, as a matter of “reasonable practicality” (as that term is used in s.65DAA(5)), that anything other than the orders as sought by Ms Trejo can work in terms of the time that the boys can and should spend with their Father.
In my view, in the light of the circumstances of the case, and especially in the light of Mr Moreau’s letter to which I have referred, the orders sought by Ms Trejo are in the boys’ best interests, accepting that those orders can only be made on an interim basis at this stage.
I grant both parties liberty to have the matter relisted on 21 days’ notice.
In the orders there will be a notation of the kind that I indicated at the outset, in which I indicated to Ms Mullard that notification had been given to Mr Kibbey, the solicitor for the Applicant Father, at the end of August, that he did not have leave to attend by telephone today and that it was only in approximately the 30 minutes before the application was called on to be dealt with today did he seek to attend by telephone.
In those circumstances, accepting the difficulties in which it placed the Court and Ms Mullard and her client (as well as Mr Kibbey and his client), given that it was through no fault of the Court, and no fault of Ms Mullard or her client, in my view it was apposite for the application to proceed in the absence of Mr Kibbey. His firm had been duly notified by the Court Registry (which he has now confirmed) that leave to attend by telephone had not been granted.
Formally, I make the orders as sought by Ms Trejo, with the addition of liberty to have the matter relisted on 21 days’ notice. In the circumstances, in my view, at this time they are in the children’s best interests.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 17th November 2009
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