Osgood and Follett

[2019] FCCA 1937

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSGOOD & FOLLETT [2019] FCCA 1937

Catchwords:
FAMILY LAW – Parenting – undefended – recovery order – interim change residence.

Legislation:

Family Law Act 1975 (Cth), ss.62B, 65DA(2), 67Q, 67U, 102NA

Applicant: MR OSGOOD

Respondent: MS FOLLETT

File Number: MLC 6482 of 2011

Judgment of: Judge Harland

Hearing date: 13 June 2019

Date of Last Submission: 13 June 2019

Delivered at: Melbourne

Delivered on: 13 June 2019

REPRESENTATION

Counsel for the Applicant: Ms Bastick

Solicitors for the Applicant: Duffy & Simon

No appearance by the Respondent

Counsel for the Independent Children’s Lawyer: Mr Byrne

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. The proceeding is adjourned for Mention Hearing on 15 July 2019 at 9:30am.

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

   Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to:

   (a)find and recover the child, [X] born … 2010, and to deliver the child to the father MR OSGOOD in the State of Victoria, or such other place as the father and the person effecting such recovery deems to be appropriate;

   (b)to stop and search any, vehicle, vessel or aircraft; and

   (c)to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.

3. The applicant immediately notify the court on 8600 4491 upon [X] being returned to their care so that the matter may be listed for hearing at short notice.

4. The Independent Children’s Lawyer be granted liberty to apply at short notice.

5. The Independent Children’s Lawyer’s and father’s costs be reserved.

6. That all previous parenting orders be discharged.

7. That the matter proceed on an ex parte basis with the absence of the Respondent Mother.

8. Pursuant to Section 67Q of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)to find and recover the child [X] born … 2010 (“the child”) and to deliver the child to the applicant Father at such place as the Father and the person effecting such recovery agree to be appropriate; and

   (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.

9. That the child live with the Applicant Father.

10. That the child’s face to face time with the Respondent Mother be reserved.

11. That the child communicate with the Respondent Mother by telephone:

    (a)each Wednesday between 6.00pm and 6.30pm and the call between the Mother and the child to be monitored by the Father at all times;

    (b)At such other time as may be requested by the child at the Father’s discretion with the call between the Mother and the child to be monitored by the Father at all times.

12. That the Applicant Father be at liberty to enroll the child at Suburb A Primary School or such other school of his choosing. 

13. That the Applicant Father do all acts and things necessary to ensure the child attends upon a paediatrician forthwith and he comply with all reasonable recommendations of the paediatrician.

14. That the Independent Children’s Lawyer be permitted to communicate with the paediatrician to obtain information in relation to the child.

15. That there be substituted service on the Mother of any further court documents filed by the parties and any further sealed Orders of the Court and such service to occur as follows:

    (a)By registered post to the Mother’s last known address at Street C, Suburb D in the State of Victoria;

    (b)By email to … ;

    (c)By text message with the solicitors for the Father to inform the Mother of the details of any future court dates.

16. That the matter be adjourned to a Directions Hearing on 15 16 July 2019.

17. That the Respondent file and serve a Response and an Affidavit she seeks to rely upon within 21 days.

18. That the Respondent be required to be in personal attendance at Court on the adjourned hearing date.

AND 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.

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

F.That it is intended that the Independent Children’s Lawyer will make an appointment with the child to explain the Orders to him.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6482 of 2011

MR OSGOOD

Applicant

And

MS FOLLETT

Respondent

REASONS FOR JUDGMENT

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

2. This is an application by the father for an interim change of residence for [X], who is aged eight. The Independent Children’s Lawyer broadly supports the father’s application.

3. Before turning to the substance of the application, I am satisfied that the mother is on notice of these proceedings. The father has attempted to have the documents served on her personally, and it appears from the affidavit of attempted service that she may be evading service. Prior to that, he had also caused the documents to be served on her by way of registered post. Further, exhibit A is an email together with the confirmation of receipt that the father’s lawyer sent to the mother after obtaining her email address from the subpoenaed documents. Counsel for the Independent Children’s Lawyer also advised that the Independent Children's Lawyer sent a text to the mother last night, advising her of today’s proceedings.

4. What is significant is that the mother has not engaged in these proceedings at all. On the first occasion that the matter came before me on 16 April 2019, the mother did not appear. The father’s Counsel raised the father’s concerns about [X]’s care, particularly with respect to his schooling and management of [X]’s reported anxiety. I appointed an Independent Children's Lawyer on that occasion. The matter next came before me on 13 May 2019 and, again, the mother did not attend. On that occasion, I was advised that a number of attempts had been made to telephone the mother without success.

5. On 13 May, I made orders specifically noting that the father may seek to change [X]’s residence on the next occasion, being today’s date, and that if the mother failed to comply with the previous orders and the orders made that day, a warrant may issue for her arrest.

6. This morning, the father’s Counsel submitted that the proper course in this matter is to make orders for a change of residence and to make a recovery order in support of that order, rather than making an order for the mother’s arrest for her to be brought to Court. Having considered the submissions and the evidence before me, I am satisfied that that is the appropriate course.

7. It is a drastic action to make an interim change of residence early in proceedings and in circumstances where the mother has not attended Court and has not provided any evidence. I am satisfied that this is one of those circumstances where, considering the statutory factors, it is in [X]’s best interests for that change to occur.

8. Of course, the mother’s failure to not only attend Court, but failure to file material and engage with the Independent Children's Lawyer in any meaningful way means that the Independent Children's Lawyer has been unable to make many of the inquiries that an Independent Children’s Lawyer ordinarily would and has not been able to meet with [X].

9. The father deposes to a pattern of the mother being increasingly inconsistent in making [X] available to spend time with him, particularly after the mother unilaterally relocated some one and a-half hours away from the father’s home in 2017. Consent orders were made in 2012 providing for [X] to live with the mother and spend alternate weekends and other regular time with the father.

10. The father’s evidence is that particularly since that move, the mother has been reducing his time, and that his time has been intermittent and inconsistent depending on the whims of the mother.

11. The father raises several concerns about [X]’s welfare, which primarily centre on the emotional and psychological harm to [X] in being denied his relationship with his father on any regular and meaningful basis, his non-attendance at school and the mother’s references to [X] being anxious, without providing him with any details with respect to that.

12. The father, in addition to seeking that [X] live with him on an interim basis, has arranged for a number of supports, including making inquiries for counselling for [X], and has also made inquiries with Ms B, who is well known to the Court, to provide assistance to him in managing change in circumstances, which are, undoubtedly, a significant change, both for the father, in becoming a residence parent, and for [X], moving from his mother’s care to his father’s care when it is not disputed that he has lived primarily with his mother all his life, noting that the parents separated when [X] was a baby.

13. The father also seeks to take [X] to a paediatrician so that any potential health issues can be investigated for [X]. He has also made inquiries of two schools and proposes that [X] attend Suburb A Primary School and deposes to having spoken to the school about the circumstances and about what supports the school could provide for [X].

14. The subpoenaed records from [X]’s school, which I mark as exhibit B, are concerning. They contain two school reports from 2017, which indicate [X] progressing well at school and does not contain any suggestion of [X] having any anxiety or other issues of concern to the school. For reasons unknown, the school did not include the report of [X] for 2018. Fortunately, the father had a copy of that report and [X]’s semester one report for 2018 is marked as exhibit C. Again, the report is a positive one.

15. It refers to [X] gaining confidence somewhat slowly in his reading. It talks about [X] not enjoying writing, but learning how to improve his skills and focus on his letter formation. He is developing self-confidence and participating more willingly in classroom discussions. He has been described as having beautiful manners by his teacher. In mathematics, he is described as always trying hard to understand new concepts, and notes that he needs support and direction to develop his skills and understanding in the area. He is doing well in arts and performing arts. In language classes, he is described as a pleasant and positive influence in the class, and that when he is confident, he attempts new things and tests his understandings, but sometimes loses some focus. 

16. Overall, he is described as a delightful class member who is happy, popular with his peers and cooperative. He is a contributing member of the classroom. He approaches his studies in a positive manner, completes most of his tasks but can be distracted by others at times. The report indicates that he needs some support in the areas of taking pride in the quality and presentation of his work and developing his confidence, which has been referred to elsewhere.

17. The report does not refer to [X] having any emotional difficulties or difficulties with anxiety, and it is overall a pretty positive report. It is not uncommon to read about young boys being distractible and sometimes not focusing. Indeed, that can be the case for young girls as well. What is indicated in that report is that he has settled into school and is a contributing member and it is not suggesting that he is having any problems with peers or the like. What is also of concern are the records of the school with respect to the mother informing the school that she intended to withdraw [X] and her child from a previous relationship saying that – and this is referred to in a note of 27 August – that both children are anxious about going to school, and she says that she knows what was best for them. The mother said that she was looking into homeschooling and distance education.

18. What is clear from the records from this period up until the end of the year is that the school has been proactive in contacting the mother, advising her of her obligations to ensure that the children attend school or are properly enrolled in home or distance education with the requirements of the Department of Education being met. What is also apparent is that the father had also been making contact with the school, including in August, expressing concerns about the mother not giving him information, concerns about the mother having moved without telling him and being concerned, once informed, about [X] being homeschooled.

19. Despite some assurances from the mother, the mother never provided the school with the documents showing that she has enrolled the children in home or distance education. What is clear from the school records is that they were escalating this matter and reporting it, as they were required to, to attendance officers with the Department of Education. In the last entry, the school noted that it was concerned about the absences, as was the father, with respect to [X], and it appeared from their inquiries with the Department of Education that little progress had been made.

20. The Independent Children’s Lawyer has also contacted the school. [X] has not attended school since August 2018. In text messages that are annexed to the father’s affidavit – and exhibit D are legible copies of those text messages – the mother refers to seeking the father’s support in homeschooling and also refers to arranging for a medical assessment for [X]. These messages took place in March this year, but it seems that, in fact, the mother, as far as the father and, indeed, the Court is aware, has not undertaken any of these actions.

21. There is no evidence that [X] is involved in distance or homeschooling education. There is no evidence with respect to the mother having [X] assessed for any medical concerns, and given that it is clear in other exchanges that the mother’s position is that [X] is anxious and needing assistance, that is of concern. 

22. Not attending school for a 10-month period is of extreme concern, as it has the potential to have a long-term negative impact on a child’s education and development. It is probably fortunate that he is in primary school rather than high school, but more than simply the concerns about his education, it also raises concerns about isolation. One real concern is, particularly if the mother has not engaged in support services and has not engaged in any external education services – and it certainly seems from the material that that is the inference that I can draw – that [X]’s emotional needs and needs for socialisation are not being met in his mother’s care.

23. What it also raises concerns about is the mother and, indeed, [X] flying under the radar because there is no external service, as far as the father and Court is aware, monitoring what is going on. In those circumstances, I do not think it is in [X]’s best interests to leave matters as they are, and ordering the mother to be arrested and brought to Court would only delay any change being made. I am satisfied that there are risk concerns in her household, and I note that the father outlines his accommodation and work arrangements and the supports that he has, which includes his partner and his extended family.

24. As I indicated previously, the father has been proactive in arranging for supports and is not someone who is simply seeking a change of residence without having thought through what the implications and, indeed, the challenges are with respect to that, including challenges for [X]. That is certainly of some comfort to the Court. The father seeks orders in accordance with the minute tendered by his Counsel today and seeks a period where the mother’s time is suspended in order that [X] can settle into his care. 

25. Whilst, on the evidence before me, I am satisfied that it is appropriate to make the orders the father seeks in accordance with his minute of order, I am concerned about there being no telephone contact because I am not certain how [X] is going to cope with suddenly not being able to speak to his mother at all. So what I propose to do is to make the order that was actually in the father’s amended initiating application, which provides for the mother to telephone [X] each Wednesday between 6 and 6.30, with the father being able to monitor the call. I certainly think it is appropriate for the father to be able to monitor the call because it may be that the mother would raise issues that would be inappropriate for [X] and of distress to him. 

26. It may also be that the mother becomes so distressed that the call should end. I do propose to bring the matter back in four weeks time, and that date is largely due to my unavailability. I will bring it back on 16 July at 9.30am, but I am also going to give the Independent Children’s Lawyer liberty to apply at short notice because there may well be developments that means that it needs to be brought back to court more urgently before another judicial officer. I note that there is an attachment to the orders that the Independent Children’s Lawyer will talk to [X] to explain the orders.

27. The Independent Children’s Lawyer is willing to do this, and I think that is appropriate – that an independent person explain to him what is happening and also that he knows that he has a lawyer and that he will be able to ask about the court process and how it is going to move forward for him.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 16 July 2019