Pachas and Edlington

[2018] FCCA 2098

FEDERAL CIRCUIT COURT OF AUSTRALIA

PACHAS & EDLINGTON [2018] FCCA 2098

Catchwords:
FAMILY LAW – Parenting – final orders made in 2011 – where the father has spent no time with the children since March 2018 – where the mother seeks to relocate with the children to Queensland – children’s best interest – interim parenting orders made – matter adjourned pending preparation of a family report.   

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62(B), 62G(2), 65DA(2),

65DAA

Federal Circuit Court Rules 2001 (Cth), r.21.15

Applicant: MR PACHAS

Respondent: MS EDLINGTON

File Number: MLC 9045 of 2010

Judgment of: Judge Kirton

Hearing date: 11 July 2018

Date of Last Submission: 11 July 2018

Delivered at: Melbourne

Delivered on: 11 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Duffy

Solicitors for the Applicant: Docherty Legal

Counsel for the Respondent: Ms Jeans

Solicitors for the Respondent: Jennings Law & Conveyancing

ORDERS

THE COURT ORDERS THAT:

1. The matter be adjourned to the Federal Circuit Court of Australia on 12 September 2018 at 9.30 am for Mention.

2. The Final Parenting orders dated 3 August 2011 (“Final Orders”) remain in full force and effect regarding [X] born 2007 and [Y] born 2009 (“the children”) save that:

   (a)Order 4(b) shall be varied such that the Applicant should collect the children from after school Thursday at 3.30 pm.

   (b)Order 18(i) shall be replaced with the McDonalds in Town A.

   (c)Orders 18(b) and 18(c) be discharged.

3. With respect to the Applicant’s time with the children for the July 2018 school holidays, the Applicant shall collect the children from the McDonalds in Town A at 10.00 am on Thursday 12 July 2018 and return the children to the McDonalds at Town A at 5.30 pm on Sunday 15 July 2018.

4. With respect to changeovers, the Respondent shall wait inside the McDonalds at the commencement of time and leave promptly on the Applicant’s arrival. Changeover shall occur with the parents only in the absence of agreement between the Applicant and the Respondent.

5. The Applicant’s resumption of time pursuant to order 4(b) of the Final Orders shall commence on Wednesday 18 July 2018.

6. Pursuant to s.62G(2) of the Family Law Act1975 (Cth), the parties and the children attend upon Ms J for the purposes of the preparation of a Family Report (“the Family Report”) to be provided to the Court by 15 August 2018.

7. The Family Report to deal with the following matters:

   (a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);

   (c)the likely effect on the children if the Court were to make Orders in terms of the Applicant’s/Respondent’s proposed orders;

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children;

   (e)the Respondent’s application to relocate with the children to Queensland;

   (f)interim time arrangements with the Applicant pending final hearing;

   (g)the Respondent and the children travelling to Queensland for a short holiday prior to final hearing.

8. The parties send copies of all of their Court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.

9. If a party is not represented by a lawyer, then within 7 days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining Orders currently in force.

10. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

11. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

12. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the final hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 14 days prior to the final hearing.

13. Upon the Family Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14. Unless a party objects, in writing, within 14 days of the date of releasing the Family Report, copies of the Family Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

15. Unless otherwise ordered, no person shall release the Family Report, or provide access to the Family Report to any other person.

16. Until further order, the Applicant and Respondent, their servants and agents be and are hereby restrained by injunction from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party, and

    (b)discussing these proceedings,

    to or in the presence or hearing of the children or any of them and from permitting any other person so to do.

17. Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

B.At the date on which a copy of the Family Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

C.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9045 of 2010

MR PACHAS

Applicant

and

MS EDLINGTON

Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This matter comes before the court by way of the father’s initiating application that was filed initially in the Magistrates' Court, and was subsequently transferred to the Federal Circuit Court in Melbourne.  Orders were originally made restraining the mother from removing the children [X] born on 2007 and [Y] born 2009 from the State of Victoria without the father’s consent.  These orders were made on 10 April 2018.  I understand they were made on an ex parte basis at that stage. 

2. This matter first came before the court on 28 May 2018.  At that stage the mother had not been served and she has come before the court today.  Final orders were made in this court by consent by Federal Magistrate Bender, as she then was, in Town B on 3 August 2011.  Those final orders were made in circumstances where the mother was represented by lawyers, as was the father, and an Independent Children's Lawyer was also appointed at that point in time. 

3. Those orders in para.4(a) provided that the children live with the husband from 5.30 pm Thursday, to the commencement of school or kindergarten on the following Tuesday, commencing 4 August 2011 and fortnightly thereafter. Para.4(b) of the orders provides that, commencing 24 July 2013, the children live with the husband from 5.30 pm, Thursday, until the conclusion of school, Wednesday, and each alternate week thereafter. 

4. There were also further orders made at that point in time for school holiday times and special holiday times.  It is the evidence of the husband in his affidavit material that his time with the children has continued basically in accordance with those orders until 31 March of this year.  That evidence is disputed to some extent in the mother’s material.  It is not possible at this point in time to come to a concluded view on untested material, but it is indicative that the father has had substantial contact with the children over this period of time. 

5. One thing is certain: that since 13 March this year the father has had no contact with the children as a result of an altercation which took place at his mother’s house.  This altercation seems to have arisen as a result of the mother’s desire to relocate the children and herself to Queensland. On an interlocutory basis it is not possible to form a view one way or the other as to the circumstances of what happened during that dispute. 

6. But one thing is apparent, in my view, that it is in the children’s best interests pursuant to s.60CA of the Family Law Act 1975 (Cth) that the children who are now aged 9 and 11 and who witnessed their parents’ behaviour on that occasion recommence contact with their father as soon as possible so that they can be reassured of their father’s love and affection towards them. I take into account s.60CC(3) of the Family Law Act 1975 (Cth). I also take into account the nature of the relationship of the children with each of their parents and also other persons including grandparents or other relatives, as this incident took place at the maternal grandparents’ house.

7. In my view, the sooner the normal relationship gets going again all the better.  I also take the view on the basis of having read the mother’s affidavit material where, having regard to her own emails, she displays a cavalier attitude towards orders made by the court, in particular, in an email 6 March 2018, 11.15 pm, where she says “court orders have not been adhered to for years, therefore they are no longer in place”. 

8. Similarly, in later emails she indicates she unilaterally chose to give the girls a choice of whether they wanted to relocate, and that is before discussing the matter with the father – and that is evidenced in an email dated 10 March 2018, 6.08 pm, where she says:

   I gave both girls the choice of where they wanted to be before I asked you –

   and so forth in that particular email.  There is an email that also indicates another point.  This is an email Wednesday, 7 March 2018, where she says:

   They read each email and know exactly what’s going on and I won’t keep anything.  They’re old enough to speak their mind and have a voice. 

9. This indicates to me that the mother intimately involves the children in this dispute and, in my view, she could be attempting to persuade the children as to what her particular view of the matter is, and that the father is not getting his side of the story across.  In my view, the sooner a family report is done, the better, and so in those circumstances the mother should be complying with court orders.  There are also contravention proceedings which are going to be listed before another judge in this court in the near future. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 7 August 2018