NORTHAM & LOWREY

[2019] FCCA 2895

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORTHAM & LOWREY [2019] FCCA 2895

Catchwords:
FAMILY LAW – Parenting – where interim consent orders were made – where overnight stays were subject to agreement and inspection as to suitability of premises – where father withheld child in contravention of orders – where father found to have deliberately withheld child – supervised time.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS NORTHAM

Respondent: MR LOWREY

File Number: DNC 75 of 2015

Judgment of: Judge Young

Hearing date: 10 September 2019

Date of Last Submission: 10 September 2019

Delivered at: Darwin

Delivered on: 10 September 2019

REPRESENTATION

Counsel for the Applicant: Ms Wynd

Solicitors for the Applicant: Infinity Legal

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Palavra

Solicitors for the Independent Children’s Lawyer: Northern Territory Legal Aid Commission

UPON NOTING:

The court is satisfied that the father failed to comply with the orders dated 15 February 2018 by withholding the child from 20 June 2019 to 23 June 2019.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child, X, born … 2010, spend time with the father as per order 13 of the Orders dated 15 February 2018 which reads:

   “Should the father fail to comply with these orders, and withhold X from the mother or nominated carer for X, the father shall spend supervised time with X at CatholicCare NT at dates and times as directed by that organisation”.

2. That the matter remains listed for trial commencing 30 January 2020 at 10.00am (allowing two days).

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 75 of 2015

MS NORTHAM

Applicant

And

MR LOWREY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning X who is nine years old. On 15 February the parties entered into interim consent orders that set in place a complex program for attempting to ensure that X, who suffers from autism, should be able to have a relationship with her father while she lives with her mother. The orders were complex, probably necessarily so, but I am satisfied they were a genuine attempt to give these parties an opportunity to demonstrate that they were able to parent this child in a way that was in her best interests.

3. In a sense, the father has been at a disadvantage in his efforts to parent the child despite his love for the child through an inability to provide suitable accommodation for her at times. The consequence of that was that order 12 provided that the time regime set out in orders 4, 5, 6, 7, 8 were to be subject to the mother inspecting any premises or any accommodation where the father was living and proposed to spend time with X and that accommodation being judged suitable. If it was unsuitable, then the time was to revert to daytime.

4. In addition, there was order 13 which provided that should the father fail to comply with these orders and withhold X from the mother or nominated carer for X, the father should spend supervised time with X at CatholicCare at dates and times as directed by that organisation. I emphasise that that was a consent order recommended by the family consultant in view of what had been a concern that the father had withheld X at various times, either in breach of orders or in breach of agreements.

5. The order was an appropriate one because, of course, the unjustified withholding of a child in breach of orders is a most serious matter and breeds distrust between parents and ultimately is a factor that is very corrosive of the capacity of parents to properly care for a child. In the case where the withholder is not the primary caregiver, it is stressful and difficult for the primary carer to deal with it. Ultimately, repeated withholding of a child in breach of orders undermines the primary carer’s capacity to adequately care for a child and is therefore not in the child’s best interests. I am satisfied that those concerns are relevant in this case.

6. What is alleged against Mr Lowrey is as follows. It is said that on 20 June 2019 the father breached the orders at a time when it appears to be agreed that order 7 of the 15 February 2018 orders applied, subject to order 12. Order 7 provides that X spend time with the father each alternate weekend from 5.30 pm Friday to 6.30 pm Sunday, subject to order 12 which provides for the mother to inspect the father’s accommodation and if the accommodation is unsuitable, for the time to revert to daytime.

7. Sometime around about 16 May, Mr Lowrey told the mother’s lawyer and the independent children’s lawyer that he would be leaving the premises where he was residing at C Street, Suburb D. On 16 May, Ms Wynd, solicitor for the mother, wrote to him and said:

   We confirm that given your change in residence, that your weekend times with X will now be during the days only from 9 am to 3 pm. This is pursuant to order 12 of court orders dated 15 February 2019.

8. Mr Lowrey confirmed that he did, in fact, speak to Ms Wynd and Ms Palavra, the independent children’s lawyer, on that day and, in effect, had agreed that it would revert to daytime.

9. On 21 May, Mr Lowrey wrote to Ms Palavra, the mother and the mother’s solicitor, and said:

   Today, I have obtained secure, stable and suitable accommodation to meet X’s needs in the home of Mr A and his family at E Street, Suburb F.

10. This reflects the language of orders 4(a) and 4(c) which deal with the necessity for the father to have secure, stable and suitable accommodation if X is to spend overnight time with him, and also 4(b), he said. He also said in that email that the mother had inspected that property on a prior occasion and found it suitable. On the same day, Ms Palavra replied to Mr Lowrey and said:

    Mr A’s accommodation at E Street, Suburb F, was considered in the past and [is] not suitable. Accordingly, until you source alternate accommodation similar to your last accommodation in Suburb D, the orders provide for daytime only.

11. Mr Lowrey wrote again to Ms Palavra the following day and reasserted his position that the E Street, Suburb F property had been found to be suitable. There is no evidence before me at the moment beyond the father’s assertion that the property had been found to be suitable. I suppose, likewise, it could be said there is no evidence before me that it had been found to be unsuitable, however, Ms Palavra pointed out in submissions that the E Street, Suburb F property had been raised some time last year in proceedings and there had been an order made that the father file affidavit material including an affidavit from Mr A as to the suitability of the accommodation. It is common ground that no such affidavit or affidavits were filed.

12. In a way, it does not matter because other events have taken place that satisfy me that the father was in breach of orders. It appears that nothing much happened about that and Mr Lowrey seems to have accepted the position because, as I understand the evidence, it is not in question that the overnight time did not recommence. In other words, Mr Lowrey appears to have accepted Ms Palavra’s position that E Street, Suburb F was unsuitable.

13. However, on 20 June 2019 the mother and Mr Lowrey arranged for Mr Lowrey to take X to a concert at G School and she was to be returned. I’m not satisfied that there was a precise agreement about what time the child was to be returned and where because the only evidence of that is an email from the mother at 6.17 pm on 20 June, saying:

    I’ll be at the temple at 8.15 [pm] after X’s concert to collect her

    sent by email to the father. The father asserts that he did not receive that message.

14. He says that when he telephoned the mother after the concert, he was unable to get in touch with her. His affidavit says that he was unaware of the 8.15 pm message but he did say that he spoke to the mother later that evening and he said in his affidavit at paragraph 3.6.10.9 (sic) that he told the mother that he had put X to bed and he would take her to school in the morning. He said the mother then insisted that X be brought home.

15. His affidavit refers to calls from the mother. The mother said she wouldn’t come and pick up the child. He said that he could not access suitable transportation until the following day and it was late and X was comfortable in bed. In other words, he withheld X. At 10:16 pm, according to Mr Lowrey, he received a telephone call from a police officer and it was clear that the police were concerned about X’s wellbeing. Mr Lowrey apparently agreed that he would bring X in to the police for a welfare check, as I take it, the next day at 1.20 pm.

16. Mr Lowrey’s affidavit then goes on to talk about car difficulties and says that he was unable to repair his car until about 4.40 pm. He did however meet the police apparently at the road corner of H Street and B Street at some time during the day.

17. What had also happened on that day, Friday, 21 June, is that first thing in the morning at 8.44 am, the mother’s solicitor sent an email to Mr Lowrey saying that he ought to return X as soon as possible. There is no evidence of a reply to that email but a recovery application was threatened and subsequently made.

18. A little bit later, at 9.24 am, Ms Palavra sent an email to Mr Lowrey saying that X should be returned and saying that X had not been returned to school as Mr Lowrey had indicated he would do the night before. The email confirmed an earlier conversation in the morning between Mr Lowrey and Ms Palavra where he said that he was not going to take the child to school but rather to the police station and Ms Palavra has requested that the child be taken to school. He was advised that he was in breach of orders and he should return X immediately.

19. Mr Lowrey retained X until Sunday afternoon or early evening, 23 June. He suggested to me today in submissions that he was entitled to do so because the accommodation he was providing at E Street, Suburb F had been previously inspected and found to be suitable by the mother. As mentioned, there was no evidence about that but even assuming that is correct, Mr Lowrey said that he did not in fact stay at E Street, Suburb F that weekend because, as he put it, the police have been out and that was creating some difficulties for some unexplained reason with the residents at E Street, Suburb F. This, he said, was unsuitable. He in fact stayed with the child at the J Hotel until Sunday.

20. On any interpretation of the orders that was unjustified. The orders make it clear that if there is to be any overnight stay with X that the mother is entitled to inspect the accommodation and it has to be suitable. She was not given the option of inspecting any accommodation. I am satisfied that the father’s conduct was deliberate. It was conducted knowing that he was likely in breach of orders and I am satisfied that the very sensible advice he had received from Ms Palavra to return the child to school was deliberately ignored by him.

21. Mr Lowrey told me that it was because of his car problems that he could not return the child. I do not accept that and, as Mr Lowrey was subject to cross-examination, I am making findings of fact. I am satisfied that the reason Mr Lowrey did not return X was not because of car problems but simply because he chose not to. It appears to me that if he was genuine about returning the child and had car problems, he could have easily told police when he spoke to them sometime during the day on the Friday. “Look, I have got a problem.  Can you return X to the mother because I cannot” but he did not do that, and I am satisfied the reason he did not do that is because he was determined not to return her.

22. I am satisfied there has been not only a breach of orders but a breach of orders without reasonable justification and furthermore, a deliberate breach of orders.

23. I am satisfied that the consent orders made on 15 February ought to be given effect and, accordingly, I find that order 13 will apply from this point, that is, X is to spend supervised time with the father at CatholicCare.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:     10 October 2019