PARVEY & BALWIN
[2020] FCCA 2479
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARVEY & BALWIN | [2020] FCCA 2479 |
| Catchwords: FAMILY LAW – Parenting – interim – ongoing dispute regarding child aged nearly 3 – where parties raise various allegations against each other – where both parties have at times withheld child to the exclusion of other – where parties entered into interim consent orders for shared care – where mother unilaterally relocated child several hours away from father and ceased time – Held pending release of family report child to be returned to live in close proximity to father’s residence – where child live with mother and spend every weekend with father – ICL to be appointed. |
| Legislation cited: Family Law Act 1975 (Cth), ss.60CA , 69ZL, Pt.VII |
| Cases cited: Baghti & Baghti [2015] FamCAFC 71 |
| Applicant: | MS PARVEY |
| Respondent: | MR BALWIN |
| File Number: | CRC 78 of 2020 |
| Judgment of: | Judge L. Turner |
| Hearing date: | 14 July 2020 |
| Date of Last Submission: | 4 August 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Barry of Kells The Lawyers |
| Solicitors for the Respondent: | Mr Byrnes of Byrnes Lawyers |
INTERIM PARENTING ORDERS
That Order (3) of the interim consent orders made in the Town C Local Court on 31 January 2020 be suspended.
That otherwise these interim parenting orders are to read in conjunction with the remainder of the interim parenting orders made on 31 January 2020.
That within 30 days from the date hereof the child X be relocated to live in an area within 50km of Town B in New South Wales.
That in the event the child and the mother relocate in accordance with Order (3) then:
(a)The child live with the mother.
(b)The child spend time with the father every weekend from 9.00am Saturday to 5.00pm Sunday with the overnight time to occur at the paternal grandparents residence with changeover at the police station closest to where the mother is residing.
That in the event the child relocates in accordance with Order (3) and the mother does not relocate with the child then:
(a)The child live with the father at the paternal grandparents’ residence.
(b)The child spend time with the mother as agreed upon between the parties.
That in the event the mother fails to relocate the child within the time frame specified in accordance with Order (3) then upon receiving written notification from the father’s legal practitioners to the judge’s chambers, a recovery order for the child will issue together with interim orders in terms as contained in Order (5).
That the child not be relocated from within 50km of Town B by either party without a court order.
That pursuant to Section 62G of the Family Law Act1975 the parties and the child X born in 2017 attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court of Australia, on a date and time to be advised, for the purposes of the preparation of a family report to be made available to the Court.
That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child and the factors contained in s.60CC of the Act the following opinions should be included:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)that the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the child.
That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the child if the Court did not reach a conclusion which accorded with the child’s views.
That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.
That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.
That upon the Report being provided to the Court, the Court will release a copy to each party (or if represented, to the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
That unless a party objects, in writing, within fourteen (14) days of the date of releasing the Report, copies of the 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 child 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.
That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
That the child X born in 2017 be represented in these proceedings and it is requested that Legal Aid Commission NSW arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings.
That this matter be adjourned for Mention at 9:30am on 2 February 2021 in the Federal Circuit Court of Australia at Lismore.
That the ICL have liberty to apply on short notice.
IT IS NOTED:
A.At the date on which a copy of the Report is 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.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one (1) 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.
C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 13 herein, they shall write to the Chambers of Judge L. Turner seeking that the matter be listed on short notice for their objection to be heard.
IT IS NOTED that publication of this judgment under the pseudonym Parvey & Balwin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
CRC 78 of 2020
| MS PARVEY |
Applicant
And
| MR BALWIN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of X who turns 3 next month.
The parties are in dispute as to the interim future parenting arrangements for X.
Proposals
The mother seeks interim orders whereby:
a)The interim orders numbered 1, 2, 4.2, 6 and 11 made in the Local Court at Town C on 31 January 2020 be discharged.
b)The mother be permitted to relocate the child from Town C to Region D in New South Wales.
c)That the child live with the mother.
d)That the father spend no time with the child.
e)That an injunction be granted preventing the father from approaching the child within 100 metres of the child residence, preschool or day care.
f)That the father undertake at his own expense a psychiatric assessment.
g)That the father undertake, as requested by the mother random urine drug tests.
h)That the father undertake an anger management course.
i)That the father provide a list of the medical professionals that he has attended.
j)That the mother have leave to issue more than 5 subpoenas.
k)That the matter be transferred to the Wollongong registry.
l)That an independent children’s lawyer (ICL) be appointed.
The father seeks interim orders whereby:
a)There be compliance with the orders made at the Town C Local Court in January 2020.
Orders that are not appropriate to make on an interim basis
From the outset it is clear that this matter requires the appointment of an independent children’s lawyer (ICL) and such an order has been made.
As such, I find that it is premature to consider the making of the following interim orders for the reasons provided:
a)Details as to father’s medical practitioners. This information will be obtained by the ICL in the questionnaire.
b)Issue of more than 5 subpoena. The ICL can seek leave to issue more than 5 subpoena if it is considered necessary.
c)Psychiatric assessment of the father. There is insufficient evidence at this point in time to support that the father be psychiatrically assessed. Further as the father is unemployed it is unlikely that he is in a financial position to fund a psychiatric assessment. The obtaining of a psychiatric assessment is an issue that can be considered by the ICL, where funding may be available through Legal Aid.
d)Urine drug testing of the father. If the father is using methamphetamines as alleged by the mother then urine drug testing is ineffective as a test taken outside of 24 hours since using methamphetamines will not detect the drug. What may need to happen is a hair follicle test and this is an issue that can be raised with the court by the ICL.
Findings that cannot be made on an interim basis
The following issues are in dispute and I find that it is inappropriate for findings to be made on such issues on an interim basis as these are issues that need to be tested at a final hearing:
a)Whether the father has been a perpetrator of family violence and if so whether such violence has occurred to or in front of the child and the impact it has had on the child.
b)The nature of the father’s mental health issues and the impact his mental health issues may have had on the father’s ability to meet the needs of the child.
c)Whether the father abuses alcohol or uses illicit drugs and if so the impact this may have on the father’s ability to meet the needs of the child.
d)Whether the father has anger management issues.
e)Whether the child is at risk of harm in the care of the father.
f)Whether the mother uses illicit drugs and if so the impact this may have on the mother’s ability to meet the needs of the child.
g)Whether the mother has been a perpetrator of family violence and if so whether such violence has occurred to or in front of the child and the impact it has had on the child.
h)Whether the mother freely gave her consent to the interim orders reached in January 2020.
i)Whether the child is at risk of harm in the mother’s household.
Issues
The issues requiring determination are:
a)Whether the interim orders made by the Town C Local Court in January 2020 are to remain in place.
b)If not, what orders are to be made for the live with and spend time with arrangements for the child including whether the child be permitted to relocate to Region D.
Evidence
In considering these issues regard has been had to:-
a)The material as marked on the court file with a red tick.
b)The written submissions.
c)Part VII Family Law Act 1975.
d)The Full Court decision of Goode and Goode [2006] FamCA 1346 which sets out the pathway to follow in interim hearings and cautions about making findings on disputed facts.
e)Relevant authorities.
The parties are legally represented.
Cross examination did not occur.
All submissions of the parties have been properly considered in reaching a determination although each submission may not have been specifically addressed or responded to in the judgment (Baghti & Baghti [2015] Fam CAFC 71).
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Pursuant to section 69ZL(1) Family Law Act1975 the reasons for judgement have been delivered in short form.
Brief history
Before considering the law is necessary to capture the relevant history in this matter:
a)The mother is aged 22 and is a stay at home mother.
b)The father is aged 25 and is unemployed.
c)In 2016 the parties commenced cohabitation.
d)In 2017 X was born.
e)In September 2018 the parties separated.
f)After separation the police took out an Apprehended Domestic Violence Order (ADVO) against the father in favour of the mother but the ADVO was never finalised.
g)In September 2018 the mother and the child relocated to Darwin with time between the father and the child ceasing.
h)In February 2019 the mother and the child returned to live in the Town C area and time between the father and the child recommenced.
i)By May 2019 the father was spending fortnightly weekend time with the child from Friday afternoon until Sunday morning.
j)In November 2019 the father retained the child and time between the mother and child ceased.
k)In late January 2020 the mother commenced parenting proceedings in the Local Court at Town C.
l)On 31 January 2020 the parties (where the mother was legally represented) entered into interim parenting orders whereby:
i)The parties have equal shared parental responsibility for the child.
ii)The child spend time with the mother from Monday morning to Thursday afternoon each week (3 nights).
iii)The child spend time with the father from Thursday afternoon until Monday morning each week (4 nights).
iv)Changeover occur at McDonalds Town E.
v)That the mother not leave the child in the care of Mr F.
vi)That the matter be transferred to the Federal Circuit Court at Coffs Harbour.
m)In February 2020 the mother retained the child in her care and ceased time between the father and the child.
n)In February 2020 the mother unilaterally relocated herself and the child to Region D without the father’s knowledge or consent.
o)In March 2020 the mother informed the father as to where she was living in Region D.
p)In May 2020 the mother filed an application in a case seeking orders for relocation with the child to live with the mother and spend no time with the father.
q)In July 2020 the matter proceeded to an interim hearing.
As at the date of the interim hearing:
a)The mother is living in Region D with the child.
b)The father is living in Town B.
c)The distance between Region D and Town B, according to google is at least 6 hours each way.
d)The father has not spent time with the child since February 2020.
e)There is no ADVO in place.
The law
I will now turn to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order the Court must consider what is in the best interests of the child pursuant to section 60CA.
But, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:-
“‘Best interests’ is not the application of a theoretical construct but rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child… of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3), guided in …consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As to the primary considerations and the leading authority of Mazorski v Albright (2007) 37 FamLR 518, Brown J refers to such considerations as “the twin pillars”:-
a)Where the first pillar is the importance of a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
Future parenting arrangements for child
This is a sad example of young parents behaving inappropriately where the needs of the child are not their number one priority.
X’s life has been in a state of flux since the parties separated in 2018 with:
a)The mother relocating the child to Darwin with the child spending no time with the father.
b)The mother returning to Darwin and time with the father recommencing.
c)The father retaining the child with the child spending no time with the mother.
d)The parties entering into interim consent orders with the mother within days of the order retaining the child with the child spending no time with the father.
e)The mother relocating the child to Region D with the child spending no time with the father.
If you were to believe the father, the child is at risk in the mother’s care due to previous violence with her ex-boyfriend and the mother’s propensity for violence.
If you were to believe the mother, the father poses a threat to her and the mother, due to his violence, his mental illness and his drug use.
Certainly his text messages are foul, to say the least, and the father should be ashamed of himself in the way he addresses the mother.
There is and never has been, an ADVO in place between the parties.
It is noted in the 11 January 2020 police report:
a)“The child at risk was subject to both parents verbally arguing over her custody”
b)“The father appeared intoxicated or drug affected he was completely of irrational”
c)“The… mother had driven to the location unlicensed…she had no food or water for the child and non-means plans on how other than driving unlicensed, uninsured with the CAR (child at risk) in the vehicle”
d)“During the entire course of the investigation both parties were arguing and screaming at each other in front of the CAR”
e)“Police attempted to negotiate with both parties, no family law court orders exist and police attempted to resolve the issue”
f)“Both parents became enraged and allegations of sexual assault and child abuse were bandied about by both parties”
g)“They then accused each other of traffic offences, break and enter offences and any other offences they believed would make the other look unfavourable in a child custody matter”
h)“Police sought advice from the FACS helpline, police were informed that ultimately the decision rested with them”
i)“The arguments in front of the child only escalated when the paternal grandmother of the child arrived and began venting her extreme displeasure with the OIC (officer in charge)”
j)“Due to the irrational behaviour of the CAR’s parents and the fact that the… mother had obtained physical custody of the child and clearly did not have the means to get her to a safe location or even leave the scene safely police had significant fears for the CAR and believed that if the CAR was allowed to leave in the vehicle with a distraught inexperienced and unlicensed driver that she would be an immediate risk of significant harm”
k)“Police used their S43 (child and young person’s care and protection act 1998 powers)”
l)“An ambulance was called as police intended on having the child cared for at Town G Hospital until an ‘on-call’ FACS crisis team could be summoned”
m)“Police cared for the CAR, she was initially distressed however calmed and eventually fell asleep in the OIC’s arms”
n)“Both parents eventually appeared to realise the gravity of the situation and the repercussions for their behaviour. Eventually the parents came to an agreement that the CAR would continue to reside at the father’s address which had been the case for the last 12 weeks at least”
o)“Due to the fact the CAR has resided at the location for a number of weeks and the paternal grandparents also reside at the location the significant fears held by police were negated. The mother eventually handed the CAR to the father of her own free will”
p)“As a result of the entire 2+ hour process and the behaviour of both parents police had fears for the CAR’s emotional well-being it appears both parents are irrational and need support services and parenting advice and or counselling”
q)“The child did not appear to have any physical issues and her basic needs appeared to be met. Without FACS intervention police fear there will be adverse ongoing emotional and psychological effects on the child”
The police raise concerns as to the father’s mental health after an incident at the paternal grandparent’s house in May 2020 when the father had been drinking.
As a result of that incident that father attended the Town G District Hospital where he was cleared of mental health concerns.
Conclusion
So what should happen?
There are issues of risk for the child with both parents, but on an interim basis there is no evidence that either party presents as an unacceptable risk to the child.
Therefore the interim orders sought by the mother that the father spend no time with the child are unwarranted.
The January 2020 interim consent orders provided for a shared care arrangement, after the child has been in the fathers care for a number of months.
The mother unilaterally relocated the child within weeks of the January 2020 interim consent orders, not applying to the court for a change in the orders until after the event.
In doing so the mother severed the relationship with the father.
There is insufficient evidence before the court to justify why the mother firstly ceased the relationship between the father and the child and secondly needed to relocate urgently with the child to Region D.
I find that the mother blatantly disregarded the January 2020 orders and did not consider the negative impact on X being taken away from the father.
Time between the father and the child must be re-established before the meaningful relationship deteriorates any further.
I find that this can only be achieved if the mother returns the child to an area in close proximity to the father.
I therefore order that the child be relocated to live within 50km of Town B.
I accept however that the shared care arrangement that was contained in the January 2020 orders cannot work given the high conflict between the parties.
The child needs a primary carer and as the primary carer has been the mother since February 2020 that I find it is appropriate for that primary care arrangement to remain in place.
The child however needs to spend time with the father on a regular basis.
I find that one overnight per weekend with such time to occur at the paternal grandparents’ house will provide the child with an opportunity to spend time with the father on a regular basis in safe and familiar surroundings.
As an order has been made for the child to return to live close to the father then consideration has not been given to the application by the mother for a change of venue.
If the mother chooses not to relocate with the child then an order has been made for the child to live with the father and spend time with the mother as can be accommodated by the mother.
If the mother fails to adhere to the court order then a recovery order will issue for the child.
Future direction
An ICL has been ordered.
A full family report is required to provide the court with guidance as to what is in this little girl’s best interests moving forward.
Consideration can then be given as to how time can progress between the father and the child.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 10 September 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Jurisdiction
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Remedies
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Procedural Fairness
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Standing
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Costs
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3
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