Neave & Jameston

[2023] FedCFamC1F 508

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Neave & Jameston[2023] FedCFamC1F 508

File number(s):	BRC 4597 of 2020
Judgment of:	BAUMANN J
Date of judgment:	5 April 2023
Catchwords:	FAMILY LAW – PARENTING – INTERIM – Final consent orders made in 2021 – Where the mother unilaterally moved the child’s residence without informing the father or obtaining his prior consent – Where the mother asserts the unilateral removal of the child was a protective measure in the best interests of the child – Where the mother has unilaterally relocated with the child in the past – Child to be returned to the father’s care immediately
Legislation:	Family Law Act 1975 (Cth) s 62G
Division:	Division 1 First Instance
Number of paragraphs:	38
Date of hearing:	5 April 2023
Place:	Brisbane
Solicitor for the Applicant:	Litigant in person person
Solicitor for the Respondent:	Family Centred Law Pty Ltd

ORDERS

BRC 4597 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NEAVE

Applicant

AND:

MS JAMESTON

Respondent

order made by:	BAUMANN J
DATE OF ORDER:	5 APRIL 2023

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the Respondent mother return the child, X born 2012 (“the child”) to the Applicant father’s care at 12.00pm on 6 April 2023, with changeover to occur at C Park, City B.

2.That the consent Orders dated 1 November 2021 be suspended insofar as they are inconsistent with today’s Order, including child spends time with the father on an interim basis.

3.That the parents shall not physically discipline the child.

4.That the child remain with the father and the next occasion the child shall spend time with the mother shall be from 3.00pm after school on 28 April 2023 until 4.00pm on 1 May 2023, with changeover to occur on that occasion at C Park, City B.

5.That the time the child spends with the mother shall continue each alternate weekend from after school Friday until 4.00pm Sunday, commencing on 12 May 2023.

6.That the child communicate with the mother each Monday and Wednesday when she is not in the mother’s care, between 6.00pm and 7.00pm and that all telephone calls shall be in private, unrecorded and uninterrupted, facilitated by the father, with the mother ringing the father’s mobile phone.

7.That the father shall ensure that his mobile phone is within a reception and has a fully charged battery when the child communicates with the mother.

June school holidays

8.That the child spend time with the father for the first half of the gazetted June school holidays.

9.That the child spend time with the mother for the second half of the gazetted June school holidays, noting the time the child will be required to attend Court for the Child Impact Report is best achieved when the child is in the D Town area where she is currently living.

Child Impact Report

10.That pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), the parents and the child attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert:

(a)Part 1 of the event will occur by video, using Microsoft Teams, on 20 June 2023, with:

(i)the Applicant to attend at 9.00am; and

(ii)the Respondent to attend at 10.30am,

with a Microsoft Teams links to be provided to the parties by the Court Child Expert prior to the event.

(b)Part 2 of the event will occur in person at the Brisbane registry at 119 North Quay, Brisbane, Queensland at 9.00am on 22 June 2023.  Specific details regarding the attendance of the parents and the child on this date will be provided to the parties in Part 1 of the event.

11.That each parent do all things necessary to ensure the child attends upon the Court Child Expert pursuant to s 62G(3A) of the Act, unless otherwise determined by the Court Child Expert that s 62G(3B) applies.

12.That the parents and the child continue to attend at such times, dates and places as the Court Child Expert may advise.

13.That by no later than 4.00pm on 24 April 2023, the parties must provide their contact telephone numbers and email addresses to …@....

14.That pursuant to Order 10 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:

(a)any agreement reached between the parties;

(b)identification of key issues requiring resolution;

(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;

(d)the impact of the issues/dispute before the Court on the child;

(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.

15.That upon completion, the Child Impact Report shall be provided to the chambers of the Honourable Justice Baumann for release to the parties.

16.That the Court Child Expert shall be at liberty to inspect any material filed by the parties.

Other orders

17.That these proceedings be adjourned for Directions Hearing before a Registrar at 11.00am on 7 August 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

18.That the parties file any further Application for interim relief after the Child Impact Report has been released.

19.That the father be at liberty to apply to have the matter re-listed, in the event the child is not returned to his care on 6 April 2023.

20.That the parties’ costs of today be reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neave & Jameston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)

BAUMANN J:

1. Although there is a dispute in this matter between the Applicant father, Mr Neave, and the Respondent mother, Ms Jameston, about the nature of their relationship and the date of separation, there is no doubt that their child X was born in 2013.  She will be 10 this year.

2. Final Orders were made by me when the matter had been listed for trial on 1 November 2021, and are reproduced as Appendix One to these Reasons.  Those Orders speak for themselves.

3. In short, the parties agreed, relevantly, that if the father relocated to reside within 30 minutes drive of the child’s current school (that school being E School) then the child would live with the parents in a week about shared care basis, with changeovers to occur on Friday afternoon at the conclusion of school or 3.00pm in the event of a non‑school day.

4. I am satisfied that after those Orders were made, the father did subsequently relocate to within the required distance of the child’s school, and a week about arrangement started to take place for a short period of time.

5. However, within a couple of months of the father relocating in approximately February 2022, the mother indicated, as her affidavit before the Court now identifies, that she wished to relocate with the child to the F Town area.  The mother then, as now, is in a relationship with Mr G, and has been since late 2021.

6. When the father indicated that he was not prepared to relocate again (to the F Town area) to meet the mother’s desire as to where she could live (or afford to live), the parties reached an understanding that the child would maintain her schooling at the E School and live primarily with the father whilst spending alternate weekends with the mother.

7. I do not suggest, on an interim basis, but I have not been able to make findings, that the mother was particularly happy with this arrangement, however, she was put in a difficult position and her relocation to the F Town area in April 2022 meant that, from that point on, the child was primarily living with the father.  Neither party saw any need, it seems, to come to the Court to vary the parenting arrangements ordered by consent.

8. Although the mother now says that she raised concerns with the Department, having taken some evidence from the unrepresented father today in response to the affidavit of the mother filed 4 April 2023, there is no evidence that the mother ever raised concerns with the father directly about what she now says was the physical abuse that the child expressed to her occurred between mid-2022 and early 2023 (see paragraph 11), or the verbal abuse that occurred during the same period as set out at paragraph 12.  There is no corroboration of these comments having been made to the mother, including from her partner, Mr G.

9. The father, in his oral evidence today, denies specifically each of the allegations.  On an interim basis, where I cannot make findings of contested facts, it is not possible, therefore, to make a finding as to whether the comments the mother asserts the child made to her are truthful or not.

10. It is not possible to know whether the mother’s actions in February 2023 in retaining the child; not coming to the Court to seek a variation of the Orders, and apparently not informing the father of her intentions until it had occurred, were entirely shaped by the allegations of abuse both verbal and physical she says the child expressed to her.

11. The mother says that she has made complaints to the Department, but they had done nothing about the complaints.  More recently, she raised further issues with the Department and she says, in her affidavit, the Department effectively said they would not intervene as the child was in the mother’s care.

12. The father gives evidence today that he has had no contact from either police or the Department.  He did, in March, journey to and contact the F Town Police, to, as he said in his evidence, advise them that his child was “missing”.  It seems clear that he knew the child was living in the F Town area, and may not have known the exact address, but had a reasonable view that the child was in the mother’s care, so she was hardly “missing”.

13. The father, no doubt shaped by the lack of ability for the police to assist him, on 29 March 2023, filed, with the assistance of a lawyer who no longer appears for him today, an Initiating Application seeking a recovery order.  It is not clear to me whether the intent of the recovery order was to locate the child or effectively to cause the child to be returned to his care.

14. Nonetheless, and thankfully, in many ways, the application by the father came to the attention of the mother, and with the assistance of a lawyer and very quickly, much to the lawyer’s credit, the mother filed a response and affidavit yesterday.  The father had not seen the document and he was given time to read the mother’s affidavit.  The transcript will show that today I caused the father to give oral evidence under oath in response to the affidavit.

15. I expressed to Ms Seacomb on behalf of the mother, that my concern in this case was that if the mother held significant fears about the safety of the child, such view was inconsistent with her conduct in, on a fortnightly basis, returning the child to the care of the father, especially where there were no orders requiring her to do so.

16. The mother gives no evidence that she ever told the father of the serious abuse that she says the child now alleges against the father.  That is inconsistent with the mother acting protectively of the child, if in fact such comments were made, but there may be an explanation for that which might be as simple as, as Ms Seacomb says, about concerns of not complying with the orders made by the Court in 2021.

17. I, of course, cannot at this stage recall what might have been said at the time those consent orders were made, but there is evidence that there had been earlier occasions where the mother, it was alleged, had not complied fully with Court Orders made.

18. One might have thought if those words were of any moment to her, that when she took the actions she did in ceasing time between the child and the father, she would have thought it appropriate to come to the Court and justify her actions, rather than to wait until the father actually did what he was entitled to do to protect the child and seek that the child return to the arrangements the parents had put in place and had been operating upon for some months.

19. When considering a recovery order, but in any event in considering what interim parenting arrangements should take place, in respect of a recovery order under section 67V, but in a general sense, the child’s best interests are the paramount consideration.

20. The issue is what should occur on an interim basis where the current final orders made by the Court in 2021 have not been complied with.

21. A matter which is of some significance, for a child of this age, apart from the allegations the mother makes (she says based on the child’s comments to her) is that this child has, for some years, attended E School.

22. There is no evidence by the mother that the child was not doing well at the school and had difficulties with the school.  A change to the child’s schooling, is a significant change for this child.

23. The father says if the child returns to his care, as was the arrangements in place since April 2022, he will cause the child to return to E School.  That, in my view, is a significant factor in support of the father’s proposal.

24. The Court does not ignore, not does it make any finding, that the child has told the mother an untruth, if in fact the mother has correctly and accurately recorded when the child made these comments.  In that regard, it is of some concern that the mother’s allegations are very vague as to time, place, the disclosure as to what caused the comment to be made, and in what circumstances the comment was made.

25. It should not be the case that merely raising an allegation in this way means that a parent should always take the approach of ceasing time which the mother says was to protect the child in case the allegations are true.  I do not ignore that the allegations may be true.

26. I have indicated to the parties that I shall cause this child and the parties to have the benefit of an urgent child impact report.  That will take place on 20 and 22 June.  I will make an order in that respect and the parties will receive notice of that appointment.

27. However, in my view, all the factors in this case persuade me that it is in the child’s best interests to return to the father’s care immediately.  I indicated as much to Ms Seacomb who, as a result, took her client’s instructions, and the child will return to the father’s care at 12.00 noon tomorrow, 6 April 2023, with the changeover to occur at C Park, City B.

28. The child will remain with the father and the next visit that the child will spend with the mother shall be from 3.00pm after school on 28 April 2023 until 4.00pm Sunday, 30 April, with changeover on that occasion at C Park, City B.

29. The time the child will spend with the mother shall then continue each alternate weekend from after school Friday to 4.00pm Sunday.

30. I will make an order that the child spend the first half of the June school holidays in the care of the father and spend the second half of the school holidays in the care of the mother, noting that the time the child will need to come to the Court for the child inclusive report is best achieved when the child is in the D Town area where she is currently living.

31. I will order that the child spend time and communicate with the mother each Monday and Wednesday when not in the mother’s care from between the hours of 6.00pm and 7.00pm, and that all telephone calls shall be in private, unrecorded and uninterrupted, and facilitated by the father.  The father shall ensure that his mobile phone is in a mobile reception area and fully charged.

32. I will otherwise suspend such of the Orders made by consent in 2021, such as they are inconsistent with the orders I have made today.

33. The mother, in her Response in respect of final relief, asks that she be excused from particularising any further orders regarding the child until such time as the police investigation into the father’s behaviour is complete.  I am not sure that there is any ongoing police investigation, on what the father has told me, but obviously that might be a trigger to reviewing the orders I have currently made.  However, what I propose to do is list the matter before a Senior Judicial Registrar of this Court sometime after the child impact report is available, with the parties to file any further applications for interim relief after that report.

34. In view of the evidence that the mother gives, which, although I am not in a position to accept it as true, I will not ignore, I will make one further order, which is that the parents shall not physically discipline the child.  I know no such order was made by me by consent in 2021.

35. I do note that there are, at Order 28, orders that are directed to restraining the parents from discussing these proceedings with the child and denigrating and insulting the other parent or the other parent’s family in the presence or the hearing of the child.  Clearly, the mother’s evidence about what she says the child has told her the father has said, would, if found to have occurred, be a breach of those orders, clearly.  As I said, the father denies any such comments.

36. The matter will only return to my list, as a Judge of Division 1, if the Senior Judicial Registrar has formed the view it has reached the stage where it can no longer be managed in the Registrar cohort or needs a further hearing by a Judge.

37. In these ex tempore Reasons, I do not propose to make any directions for the preparation of a family report or the appointment of an Independent Children’s Lawyer.  I can comfortably leave such decisions to a Senior Judicial Registrar to make as part of the case management of the matter if required, but note that in the earlier proceedings before the Court, an Independent Children’s Lawyer had been appointed.

38. The orders that appear at the commencement of the Reasons are in the child’s best interests at this time.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       26 June 2023

APPENDIX ONE

1.        That all previous Orders be discharged.

Parental responsibility

2.That the mother and father have equal shared parental responsibility for the long term care, welfare and development of the child, X born 2013 (“the child”).

3.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

a.They inform the other parent about the decision to be made;

b.They shall consult with each other on terms that they agree; and

c.They shall make a genuine effort to come to a joint decision.

4.That the mother have sole parental responsibility for the day to day care, welfare and development of the child when the child is in her care.

5.That the father have sole parental responsibility for the day to day care, welfare and development of the child when the child is in his care.

Living arrangements during the school term

Up until the father relocates to within thirty (30) minutes’ drive of the child’s current school

6.That the child live with the mother.

7.That the child spend time with the father as agreed between the parent, but failing agreement each alternate weekend from after school on Friday until 5.00pm on Sunday.

8.That in the event a public holiday falls on the Monday immediately following the child’s time with the father, time shall conclude at 5.00pm on Monday.

Upon the father relocating to reside within thirty (30) minutes’ drive of the child’s current school

9.That the child live with the parents on a week about shared care basis, with changeovers to occur on Friday afternoon at the conclusion of the school day (or 3.00pm in the event of a non-school day):

a.in week one (1) with the mother; and

b.in week two (2) with the father.

Living arrangements during the school holidays

10.That during the child’s school holiday periods, all other time shall be suspended and the child shall spend time with the parents as follows:

a.In odd numbered years, with the father for the first half of all school holiday periods, and with the mother for the second half; and

b.In even numbered years, with the mother for the first half of all school holiday periods, and with the father for the second half.

11.That school holiday time shall commence when a parent’s time falls in the first half of the school holidays, from the conclusion of the last day of the school term, and conclude at 5.00pm on the day to be calculated to be half of the school holiday period.

12.That for the purpose of calculating the number of nights and the halfway point of the school holiday periods, the nights shall be counted from the last day of the school term up until the first day of the new school term and divided by two (2), and if there is an uneven number of nights, the father shall retain the additional night.

Special occasions

13.That on the following special occasions all other time shall be suspended and the child shall spend time with the parents as follows:

a.During the Easter special days;

i.In odd numbered years, with the mother from 9.00am Good Friday until 5.00pm on Easter Monday; and

ii.In even numbered years, with the father from 9.00am Good Friday until 5.00pm on Easter Monday.

b.For Mother’s Day and Father’s Day:

i.On Father’s Day, with the father from 5.00pm the Saturday prior to Father’s Day until 5.00pm on Father’s Day; and

ii.On Mother’s Day, with the mother from 5.00pm the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day.

Changeovers

14.That changeovers shall occur, where possible, at the child’s school and otherwise at McDonald’s H Town, J Street, K Region, Queensland.

Communication

15.That the child shall be permitted to communicate with the parent she is not otherwise living with by telephone, Skype or FaceTime, at all reasonable times and at times as agreed between the parents, and failing agreement each Monday and Wednesday, on Christmas Day, on the child’s birthday and on Easter Sunday between 6.00pm and 7.00pm and in relation to such communication, each parent shall:

a.use their reasonable endeavours to ensure that the child is available to receive the telephone call;

b.arrange for the child to telephone the other parent the following night, if for any unforeseen reason, the child misses the telephone call; and

c.ensure the child is afforded privacy during the conversation.

Communication between the parents

16.That the mother and father shall:

a.communicate by way of a communication book in relation to the day to day care of the child;

b.communicate by way of email and/or text message in relation to any additional matters or long-term decisions relevant to parenting of the child;

c.communicate by way of a telephone call in relation to any emergencies or urgent issues relating to the child;

d.inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child;

e.inform the other parent within forty eight (48) hours of changes to the respective parent’s residential addresses and/or mobile telephone numbers and/or email addresses; and

f.keep the other parent informed of the names and addresses of any medical practitioners who are involved in treating or caring for the child.

Interstate travel

17.That each parent shall provide the other parent with at least fourteen (14) days’ advance notice of any proposed travel outside of the Brisbane metropolitan area where it is intended that they will take the child and stay overnight for a period in excess of two (2) nights, and provide a contact telephone number where the child may be contacted during such period.

18.That the parents will ensure that during any interstate travel, the child will be accompanied during transit by either the mother, father, or an agreed third party at all times.

The child’s birth certificate

19.That within fourteen (14) days, the mother shall complete the relevant form required to request an amendment to the birth certificate of X to include MR NEAVE as her father and shall provide same to the father for his signature.

20.That the father shall, within seven (7) days of receipt pf the completed application form, execute the relevant form and provide it, along with copies of his certified identification to the mother.

21.That the mother shall, within seven (7) days of receipt of the executed form, forward the completed form, relevant identification of the parties and the child’s original birth certificate to the Registry of Births, Deaths and Marriages.

22.That the parents shall equally share the costs of the amendment to the child’s birth certificate.

Specific issues

23.That the parents are restrained by injunction from relocating the child’s residence to in excess of thirty (30) minutes’ drive of the child’s school, namely E School, without the express written consent of both parents.

24.That the child remain enrolled at E School and the parents be restrained from changing the child’s school until the completion of the child’s primary education, unless otherwise agreed in writing.

25.That the parents shall ensure the child’s attendance at school and in the event the child is absent from school on any day, the parent with whom the child is living with on that day:

a.must inform the other parent of the reason why the child is not attending; and

b.if the child is absent from school for more than one (1) day, shall procure and produce a medical certificate to the other parent.

26.That this Order authorises the children’s treating medical and any allied health practitioners to discuss the child’s health and treatment with both parents.

27.That this Order is an authority for the mother and father to obtain from the child’s schools or other educational facility information in relation to the child, including copies of school reports, school photographs and any other document regarding her academic progress or achievements of the child and notification of events such as parent/teacher events, sports days and concerts.

28.That both parents will:

a.refrain from discussing these proceedings and matters of an adult nature with the child including eliciting any indication of the child’s wishes relevant to parenting matters;

b.respect the privacy of the other parent and will not question the child about the personal life of the other parents;

c.speak respectfully of the other parent; and

d.not denigrate or insult the other parent or the other parent’s family in the presence of or hearing of the child and will use their best endeavours to ensure that other people do not denigrate or insult the other parent or the other parent’s family in the hearing of or presence of the child.

29.That the mother and father will use their best endeavours to follow a similar routine and ensure that the child’s dietary requirements are met when she is in their respective care.

30.That the parents are restrained from consuming alcohol to beyond the legal driving limit and/or illicit substances and from exposing the child to people under the influence of alcohol and/or illicit substances when the child is in their care.

31.That the child have her own bed at each parent’s residence and the parents will use their best endeavours to ensure the child sleeps in her own bed.

Other

32.That all outstanding Applications and Responses be dismissed.

33.That there be no order as to costs.

THE COURT ORDERS ON A FINAL BASIS:

34.That noting Psychologist, Dr L, has been engaged under a mental health plan to provide counselling to the child, and that the father has not been involved in the appointment or consultation with Dr L:

a.further counselling sessions shall cease unless the father agrees they continue;

b.within seven (7) days of the date of this Order, the father shall use his best endeavours to contact Dr L to get an overview of the need for the child to have counselling;

c.within twenty four (24) hours of the date of this Order, the mother shall provide written authority for Dr L to speak with the father; and

d.if the father agrees counselling should continue under the current prescribed mental health plan, then any gap payment for the sessions for the child shall be shared equally between the parents.

35.That any application for enforcement of these Orders to be listed before Justice Baumann if possible.

36.That the Independent Children’s Lawyer be discharged.