Pollard & Nordberg

[2019] FamCA 365

FAMILY COURT OF AUSTRALIA

POLLARD & NORDBERG [2019] FamCA 365

FAMILY LAW – DE FACTO RELATIONSHIP – three children – two born to the couple – the eldest having a different biological father.

FAMILY LAW – RECOVERY ORDER –  mother removes three children from Victoria to New South Wales – no knowledge or agreement to do so from father – mother’s family and network at place where she now lives with the children – father obtains recovery order from local Magistrates Court in Victoria.

FAMILY LAW – FAMILY VIOLENCE – detailed assertions by mother – disputed by father – little evidence given by father beyond denials – mutual intervention orders – mother contending that the fact, nature and extent of family violence drove her to depart Victoria seeking refuge with her family – no evidence from a family consultant or 11F report.

FAMILY LAW – INTERIM PARENTING APPLICATION – proper approach to adopt when dealing with contested evidence, especially in respect of family violence.

FAMILY LAW – APPEAL UNDER s 96(4) – hearing de novo – extensive review of authorities – conclusion that appeal should be allowed.

FAMILY LAW – INTERIM RELOCATION ORDER – desirability or otherwise of making such an order when the evidence is incomplete – need for better evidence about the best interests of the children – further hearing of that application adjourned to Federal Circuit Court.

FAMILY LAW – TRANSFER OF PROCEEDING – from local Magistrates Court to Federal Circuit Court of Australia – subsequent to transfer Magistrates Court purportedly issuing recovery warrant directed to Australian Federal Police – nullity– recovery order made 16 April 2019 set aside.

Family Law Act 1975, pt 7, ss 4AB, 29, 37A, 60B, 60CC, 61, 67, 94, 96,
Family Law Amendment Act 1983 No 72 of 1983, s 15
Commonwealth of Australia Constitution Act (The Constitution) 1900, ch 3, ss 71, 77, 79

Aldridge v Keaton [2009] FamCAFC 106
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Attorney General v Sillem [1864] 10 HL Cas 704
Banks & Banks [2015] FamCAFC 36
Browne v Keith (2015) 55 Fam LR 208
C v S [1998] FamCA 66
CLR 681
Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Commonwealth of Australia v Bank of New South Wales [1950] AC 235
Deiter v Deiter [2011] FamCAFC 82,
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode (2006) 36 Fam LR 422
Grierson v R (1938) 60 CLR 431
Harris v Caladine (1991) 172 CLR 84
Hutchinson v Hutchinson (1978) 4 Fam LR 446
In the Marriage of Grabar (1976) 2 Fam LR 11,581
In the Marriage of Nowland (1977) 3 Fam LR 11,262
In the Marriage of Robinson and Willis (1981) 8 Fam LR 131
In the Marriage of Sanders (1976) 1 Fam LR 11,433
In the Marriage of Scott (1994) 17 Fam LR 420
In the Marriage of Sutton (No 2) (1976) 2 Fam LR 11,256
In the Marriage of Watts (1976) 1 Fam LR 11,266
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1981) 72 ALJR 1329
Marvel v Marvel (2010) 43 Fam LR 348
Moore & Evers (Summary Appeal) [2014] FamCA 947
Morgan v Miles (2007) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Progress and Properties Ltd v Craft (1976) 135 CLR 651
Quilter v Mapleson (1882) 9 QBD 672
R v Pilgrim (1870) 6 LR 6 QB 89
Redmond & Redmond [2014] FamCAFC 155
Salah & Salah (2016) 56 Fam LR 299
South Australian Land Mortgage and Agency Co Ltd v R (1922) 30 CLR 523
SS & AH [2010] FamCAFC 13
Sterry v Sterry [2017] FamCAFC 226
Sweeney v Fitzhardinge (1906) 4 CLR 716
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73

APPLICANT: Mr Pollard

RESPONDENT: Ms Nordberg

FILE NUMBER: DGC 1312 of 2019

DATE DELIVERED: 7 June 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Wilson

HEARING DATE: 28, 31 May and 3 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Moore

SOLICITOR FOR THE APPLICANT: Warren Graham & Murphy

COUNSEL FOR THE RESPONDENT: Ms L Colla

SOLICITOR FOR THE RESPONDENT: Foye Legal Pty Ltd

Orders

1. I dismiss the father’s application for a recovery order made in paragraph 3 of his initiating application dated 22 March 2019.

2. The mother’s application for a relocation order made in paragraph 4 of her amended response dated 31 May 2019 is adjourned for further hearing before his Honour Judge Burchardt on 10 July 2019.

3. Until the hearing before his Honour Judge Burchardt –

   (a)       the mother is to have sole parental responsibility;

   (b)       the children are to live with the mother;

   (c)the father is to have supervised time with the children in New South Wales at times to be agreed; and

   (d)in default of agreement the father is to have time by telephone or Skype for up to a half hour per day.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1312 of 2019

Mr Pollard

Applicant

And

Ms Nordberg

Respondent

REASONS FOR JUDGMENT

introduction  

1. While sitting in the judicial duty list on 28 May 2019 this appeal under s 96(4) of the Family Law Act from an order made in the Magistrates Court at Town A on 16 April 2019 came on for urgent hearing before me.  On that day I was told by Ms Laura Colla of counsel that the biological father of one of the children relevant to this appeal had very recently been served with process in Queensland and that principles of procedural fairness required his intentions about the case to be known and that a brief adjournment was required.  I gave the parties until 31 May 2019 to learn from the eldest child’s father what his proposed involvement in this case was to be.  He did not participate.  The case proceeded over 28 May, 31 May and 3 June 2019.  I agreed to give my reasons urgently to accommodate the wishes of the parties.  These are my reasons.

2. Two matters were argued before me, namely the mother’s appeal against the order for the return of the children to the father and the mother’s interim re-location application.

Synopsis

1. For the reasons that follow I allow the appeal and dismiss the father’s application for a recovery order.

2. The mother’s application for a relocation order is adjourned to his Honour Judge Burchardt on 10 July 2019.  In the meantime I make an order that the children live with the mother and the that the father has supervised time with the children in New South Wales at times to be agreed, such supervision to be conducted by E Group Town D as well as time telephone or Skype.

3. This proceeding will otherwise be dealt with by his Honour Judge Burchardt of the Federal Circuit Court of Australia on 10 July 2019.

An overview of the appeal

1. On 22 March 2019 the father commenced this litigation seeking parenting orders against the mother in relation to three children, the eldest being C (born 2009 and whose father is one Mr B) the middle child being X, (born 2016) and the youngest being Y (born 2018).  When commencing this case the father did not identify any allegations of child abuse or family violence.  The father affirmed an affidavit in support of his initiating application made 21 March 2019.  In it he stated as follows –

   a)who was 42 and the mother was 31;

   b)he was unemployed and for two years had been what he called “a stay-at-home dad”;

   c)the mother was a carer who had been on maternity leave since the birth of the youngest child in 2018;

   d)the father and the mother had been in a de-facto relationship for six years or thereabouts;

   e)the eldest child has been raised by the mother and father since they began their relationship and the biological father, Mr B, has had limited contact with the eldest child;

   f)the father had been the primary carer of the children for the last two years;

   g)all three children enjoy a safe loving home with the father; and

   h)the eldest is settled in school and has a friendship group.

2. The father addressed the circumstances of the events on 7 February 2019 being the last date said he saw the three children.  He said on that day the mother had arranged to take her car for servicing and had stated she would take the youngest two children with her.  He said the mother requested the father to remain at home to ensure the eldest child went to school that day.  He said that in accordance with the mother’s request, the father delivered the eldest child to the bus stop and the mother departed with the two youngest children.  He said he sent the mother messages during the day to enquire how the car servicing was progressing and when she intended to return.  He said he received no response to his messages.  He said he attempted to telephone the mother several times.  He said at 2:20pm that day he received a message from the mother telling him that she had the children (he did not say which children) and that she would telephone him in a few hours.  He said he was confused.  He said at 8 pm the mother telephoned him stating that she was on her way to the mother’s home in New South Wales, near Town D, that she loved him and that she would be returning on 2 March 2019.  He said he was confused, upset and concerned and that the eldest child’s birthday fell on 27 February.  He said the mother had made allegations, although he did not say when he asserted that those allegations had been made.  He said her doctors, support workers and DHHS had told her not to contact the father.  He said he had not had any contact with her doctors, support workers or with DHHS.  He denied being violent towards the mother.  He said he had only once spoken to the children.  He said approximately three years ago the mother left the father, he said by reason of the impact of her condition then diagnosed as hypothyroidism.

3. Among the documents exhibited to his affidavit made on 29 March 2019 was a screenshot of a text message the mother sent the father at 5:48pm on 7 February 2019.  It read as follows –

   We just got here 20 mins ago. I have fed Y now and she is sound asleep. C and X are soaking up nanny cuddles. We love you baby xoxoxox

4. On 3 March 2019 at 11:37pm the mother sent the father a text message in answer to his question by text message whether she loved him, saying that she did.  The mother stated in various text messages that she was not planning (I infer, intending) to travel to Town D and that she decided to go there one day before the day she in fact travelled there.  The mother sent a photograph of her smiling with a very young child (again, I infer, the youngest child) on her shoulder.  The mother made an affidavit on 15 April 2019.  In it she deposed to events up to and including the orders made on 26 March 2019 at the Magistrates Court at Town A.  While out of chronological sequence, it is useful at this juncture to record the mother’s version of events up to and prior to her departure from the State of Victoria on 7 February 2019.

5. The mother deposed to being 31 years of age, having hypothyroidism and living from the proceeds of a parenting payment and family tax benefits.  In that affidavit she stated –

   a)she and the father commenced a relationship in March 2014;

   b)at that time the father was employed and he had a driver’s licence;

   c)when the mother met the father she was unaware of his aggressive nature, his addiction to marijuana and his previous criminal history;

   d)the father has twice been charged with assault during their relationship;

   e)the father lost his licence by reason of driving while his blood alcohol content exceeded 0.05% and during a period of disqualification he was apprehended while driving when the eldest child was in the car he drove;

   f)the father had what she called “a past criminal history of cultivation and possession of marijuana”, although she did not state whether he had been previously charged for cultivation or possession, when, and if so whether he had been previously convicted for either and with what consequence; and

   g)she said she had been charged with an offence, although she gave no details.

6. She deposed to issues under a heading of that affidavit “family violence”.  She said that over the past three years the father had been verbally abusive towards her, allegedly calling her a “cunt” and a “whore”.  She said he constantly belittled her and physically stood over her.  She said that placed her in fear.  She did not state in her evidence –

   a)the frequency of the occasions she described as “constantly”;

   b)what acts were involved in the father’s alleged belittling behaviour; or

   c)the frequency of or acts involved in the father allegedly physically standing over her.

7. Those last three alphabetical subparagraphs assumed importance in this case because Mr Moore of counsel for the father contended that the evidence in this case about the family violence alleged by the mother was devoid of content.  Ms Colla took issue with that characterisation as she submitted that the evidence of the mother revealed direct evidence that the father was violent towards the children.  Support for that submission emerged from paragraph 11 of the mother’s affidavit made on 15 April 2019.  In that paragraph she stated that after the birth of the middle child in November 2016 the father and the mother’s relationship deteriorated further and that the father –

   a)yelled at the children;

   b)threw toys at them;

   c)squirted water in their faces to stop them crying; and

   d)yelled at the children in the morning if they woke him up.

8. Mr Moore made the same characterisation about that evidence as he did about the mother’s other evidence about family violence, contending that it lacked detail, specificity and content.

9. The mother stated that in the period from February 2019 the father’s aggressive behaviour intensified.  She said –

   a)the father becomes angry at the smallest things;

   b)the father puts his face in her face and yells until she gives in;

   c)the father yells to her saying “go on, do it” and “come on, hit me”;

   d)the father prevented her and the children from leaving the house until he authorised it;

   e)the father hid the keys to the car;

   f)sometimes for several days the father prevented the mother from leaving the house until the mother begged him to let her go so that she could buy food; and

   g)during arguments between the two, the father, often forcefully, removed the mother’s spectacles, leading to her sense of fear as, so she said, she has poor vision.

10. She said she felt she had no other way so she left.  She said she left Victoria on 7 February 2019 “to start a new life with the children in New South Wales” (her words).  She did not address the events of 7 February 2019 or thereafter until 15 February 2019 when she said she made a report to police of the Region F Police District, New South Wales.  It is utile to identify certain assertions in that police statement, recognising that the events she described in that statement were not contemporaneous.  Be that as it may, she stated –

    a)she and the father separated for three months but they resumed cohabitation upon the mother learning she was pregnant with her third child, the second to him, namely the child born in 2018;

    b)thereafter the father began drinking excessively and smoking marijuana;

    c)the father became angry with the children, yelled at them, yelled at them for waking him up in the morning, threw toys at the children and squirted water in their faces;

    d)the father threw wine over the eldest child;

    e)the father in anger puts his face about 5 cm from the mother so that saliva hits the mother’s face when he is yelling at her;

    f)the father yells at the mother saying “go on, do it” and “come on, hit me”;

    g)on one occasion when the father was yelling at the mother with his face close to hers, the mother pushed the father away after which the father slapped the mother in the face causing her spectacles to fall and her to fall backwards over the dog and to land in the fireplace;

    h)the father during arguments would remove the mother’s spectacles from her and threw them across the room or threatened to snap them;

    i)the father has gestured by placing his fist against the mother’s face;

    j)the father has stated to the mother in reference to family violence that he could stab her a hundred times and bury her in the backyard;

    k)the father has prevented the mother and the children from leaving the house by hiding the car keys;

    l)the father has prevented the mother from leaving in the car by standing in front of the car, by climbing into the boot or by taking the children from the car before she can leave; and

    m)she secretly packed the children’s bags and after servicing the car, drove to her mother’s home in New South Wales, leaving her own belongings and the children’s belongings behind; and

    n)the eldest daughter says she is frightened of the father.

11. The evidence revealed several text messages on and after the date the mother made the statement to police.  On one construction of those text messages, they did not reveal the mother’s fear of the father or, if I am wrong in that construction, the evidence revealed equivocation especially her texts on 3 March 2019 saying in response to the father’s question whether the mother loved him “of course I do” and her parting message at night “Good night baby”.  Mr Moore submitted that those contemporaneous text messages did not reveal a sense of fear held by the mother.

12. The narrative of events between 26 and 29 March in relation to the application for and grant of an interim intervention order was confusing.  Doing the best I can to deconstruct those events, it seemed to me that on 26 March 2019 a police officer whose name need not be stated applied for an intervention order to be made against the father naming the mother and the children as affected family members.  That application was expressed to be returnable on 16 April 2019.  On the same day, 26 March 2019, the father’s initiating application for a recovery order was served on the mother at the mother’s mother’s home in New South Wales.  On receipt of that process, on 27 March 2019, the mother’s step-father telephoned the father requesting an adjournment of the recovery order application.  The father refused his consent.

13. Also on 27 March 2019 an interim intervention order was made at the Magistrates Court of Town A.  The father exhibited a copy of the order to his 29 March 2019 affidavit.  Its terms prohibited the father from approaching any of the protected persons named in the order (being the mother and the three children) within 5 metres or 200 metres of the mother’s place of work or residence.  To the mother’s 15 April 2019 affidavit she exhibited an identical intervention order yet different in two respects.  The first was the date, namely 29 March 2019 and the second was that it stated the father in fact attended court on that day whereas the order dated two days earlier showed that the father was not at court on 27 March 2019.

14. On 29 March 2019 both the father’s application for a recovery order and the police member’s application for an intervention order were heard before the Magistrates Court at Town A.  His Honour the Magistrate made orders –

    a)adjourning both applications to 16 April 2019;

    b)directing each of the mother and father to be legally represented on 16 April 2019; and

    c)ordering the mother to file affidavit material seven days prior to 16 April 2019.

1. The mother filed her affidavit on 15 April 2019 rather than within the time ordered by his Honour the Magistrate.  The father filed a further affidavit on 16 April 2019, being the date of the hearing.

2. The father’s affidavit revealed further text messages between the father and the mother on and around 14 February 2019.  Those communications were friendly.  One depicted the mother wearing spectacles in which comical drawings of eyeballs had been fixed to the lenses, another recorded the mother’s suggestion for the father to travel to New South Wales for the eldest daughter’s birthday then stay and drive back with the mother and the children, another from the mother was expressed “Happy Valentine’s Day darling xxxx”, another contained and an emoji of a love heart, another from the mother stated “Good night superman”, one from the father stated “good night my sweet princess… xoxo”, another on 15 February 2019 from the mother read “No sorry.  I love you” and the mother sent the father photographs of her and the children.

3. In her response to the initiating application filed on 16 April 2019, prepared by solicitors, the mother sought orders for sole parental responsibility of the youngest two children, for them to live with her, for the transfer of the proceeding to the Federal Circuit Court, for the appointment of an independent children’s lawyer, for orders permitting the mother to live in New South Wales with the children and other orders.  The mother filed a notice of risk stating the children were at risk for two reasons, namely –

   a)the father had abused the mother and the children verbally and, at times, physically including throwing toys at them and squirting water in their faces; and

   b)the father has a drug addiction and has no capacity to care for the children.

Orders made on 16 April 2019

1. The case came before her Honour the Magistrate on 16 April 2019.  The father was represented by his solicitor and the mother was represented by her solicitor.  After debate, her Honour made orders –

   a)requiring children to be returned to the State of Victoria by 29 April 2019;

   b)for the children to live with the mother;

   c)for the two youngest children to spend unsupervised time with the father in accordance with a particular regime;

   d)for the transfer of the proceeding to the Federal Circuit Court of Australia;

   e)forbidding the consumption of alcohol by either parent when the children were in his or her care; and

   f)for changeover to be at Town A Police Station. 

2. On 16 April 2019, two intervention orders were also made at the Town A Magistrates Court.  The first was on the motion of the police officer.  It named the mother as the affected family member.  The children were not named.  The order operated upon the father.  In the second order the father obtained against the mother a prohibition on her going within 5 metres of the father or 200 metres of his place of residence.

3. The mother applied to stay the orders made by the learned magistrate.  She did so by application in a case dated 26 April 2019 and filed on 30 April 2019.  In support the mother made an affidavit on 26 April 2019.  Expressed most briefly, in that affidavit the mother stated as follows –

   a)the middle child attends a playgroup at a local church in New South Wales and the youngest child is breastfed;

   b)the mother has no financial or other support in Victoria whereas her mother, father, three sisters, aunt, uncle and friends live with or near her in New South Wales;

   c)she lives rent-free with her mother;

   d)she and the children are in a stable environment in New South Wales;

   e)she has left her employment in Victoria and she has no job to return to;

   f)she has no home to return to in Victoria;

   g)prior to departing Victoria she removed herself from the lease, paid her share of rent and paid the electricity account due to that date;

   h)she fears that she will or may be liable for the father’s debts that have been incurred by him since her departure if she moves back to the rental property she and the father occupied prior to 7 February 2019;

   i)the children are progressing well in New South Wales; and

   j)in New South Wales the eldest child is calmer, the middle child has settled and the youngest child remains demanding.

4. The mother was required to return to Victoria by no later than 29 April 2019 in accordance with court orders. 

5. She failed to do so.

6. The father filed a contravention application on 2 May 2019 alleging that the mother failed to comply with the orders made on 16 April 2019.  By that date, 2 May 2019, his Honour Judge Burchardt had become seized of the manner and made orders on that date permitting the father and mother to inspect the documents produced by the New South Wales Government Family & Community Services.  In support of a contravention application the father made on affidavit on 1 May 2019 exhibiting certain documents and deposing to the fact that he had not seen the children since 7 February 2019.

The notice of appeal

1. On 3 May 2019 the mother filed a notice of appeal in which she appealed against the orders made by the learned magistrate on 16 April 2019. In it she relied on four grounds. For completeness I have set them out below, although for the reasons also set out below, on a s 96(4) appeal, grounds of appeal are unnecessary as this is a full rehearing.

2. On 8 May 2019 the father applied for the Federal Circuit Court to make a recovery order pursuant to s 67Q of the Family Law Act.  The father supported his application by his affidavit made 8 May 2019.  In it he deposed to the following –

   a)he had not seen the children since 7 February 2019;

   b)he dearly loved them and missed them;

   c)it is in their best interest for the children to return to Victoria;

   d)his requests to the mother for time to speak with the children have been ignored;

   e)he did not agree to the children being removed from Victoria; and

   f)he sought the making of an ex parte urgent recovery order.

The 8 may 2019 order obtained ex parte

1. Despite the proceeding having been transferred to the Federal Circuit Court and despite his Honour Judge Burchardt having made orders in relation to the case (his Honour being seized of jurisdiction) on 8 May 2019 a magistrate made an order on the ex parte application of the father whose solicitor appeared in order to make the application.  The mother exhibited a copy of the order of the learned magistrate to the mother’s affidavit.  The father did not.  A warrant was issued, directed to members of the Australian Federal Police and other police officers commanding them to return the children to Victoria.  Curiously, the order did not state who the children were.  One may express doubts or reservations about the enforceability of that order.  One may also enquire why the application for the recovery order was made ex parte.  By the date on which the ex parte application for a warrant was heard, the mother had applied for orders staying the 16 April order and she had filed an appeal against the orders of 16 April.  It was very relevant for the magistrate to be appraised of those matters.  The father’s solicitor who appeared before the learned magistrate on 8 May 2019 did not make an affidavit deposing to the information the learned magistrate was given.  That said, a letter from the Federal Circuit Court (erroneously headed in 2019 after the court’s name had been changed from Federal Magistrates Court of Australia) was sent to the firm of solicitors representing the mother and father that the case had been transferred.  The application to the Magistrates Court on 8 May 2019 should not have been made.  That court had no power to make the order it did on 8 May.  The father should not have applied to that court after 29 April 2019.

2. On 14 May 2019 this proceeding came before his Honour Judge Maguire in the Federal Circuit Court.  On that date his Honour was concerned with the mother’s application in a case filed on 13 May 2019.  In that the mother sought orders –

   a)dismissing the order made in the Magistrates Court and Town A on 8 May 2019; and

   b)suspending the orders made in the Magistrates Court at Town A on 16 April 2019.

3. His Honour Judge Maguire suspended the 16 April orders and adjourned the further hearing of those applications to her Honour Judge Harland on 17 May 2019.  With her Honour’s customary speed and skill, her Honour Judge Harland heard the mother’s applications and gave an ex tempore decision and reasons on 17 May 2019.[1]  Among the more important matters to be extracted from her Honour’s reasons are the following –

   a)it was concerning that an application was made to the Magistrates Court having regard to the fact that the proceeding had been transferred from that court on 8 May 2019;

   b)it was concerning that the application on 8 May 2019 was made ex tempore there being no evidence to suggest that the mother would behave in a manner rendering the application nugatory if notice of it had been given to the mother;

   c)the suggestion that the ex parte application before the Magistrates Court could have been heard more expeditiously than could an application to the Federal Circuit Court was baseless; and

   d)the suggestion that it was appropriate to bring to the same magistrate an issue of enforcement of his or her own order was likewise baseless as different magistrates made the two orders.

   [1] [2019] FCCA 1359

4. Her Honour Judge Harland applied orthodox legal principles in considering the application, including the stay application.  In my respectful opinion, her Honour’s reasons were flawless.  Those principles included the decision of the High Court in Commissioner of Taxation v Myer Emporium Ltd (No 1)[2] and other decisions such as Alexander v Cambridge Credit Corporation Ltd,[3] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[4] and JRN & KEN v IEG & BLG.[5] On matters of stay applications in family law matters the Full Court has pronounced on point in Aldridge v Keaton.[6]

   [2] (1986) 160 CLR 220

   [3] (1985) 2 NSWLR 685

   [4] (1986) 161 CLR 681

   [5] (1981) 72 ALJR 1329

   [6] [2009] FamCAFC 106

5. Her Honour made certain observations about the manoeuvrings in this case.  Her Honour held –

   a)a person who has obtained judgment is entitled to the benefit of that judgment and presume that it is correct;

   b)the filing of an appeal does not operate as a stay;

   c)the court is entitled to consider the bona fides of the application for a stay;

   d)the court is entitled to consider the risk that an appeal may be rendered nugatory if the stay is not granted;

   e)the mother had unilaterally relocated to Town D and was now seeking an interim relocation order, an ordinarily vexing application; and

   f)s 60CC considerations are relevant to the application for a recovery order.

6. In the upshot, her Honour stayed the orders made on 16 April 2019 and suspended the orders made on 8 May 2019.

7. On 31 May 2019 the mother, with my leave, filed an amended response.  In it, she sought amended orders –

   a)transferring the proceeding to the Wollongong Registry of the Federal Circuit Court;

   b)giving the father time by electronic means;

   c)allowing the independent children’s lawyer to request the father to submit to drug testing; and

   d)supervised time for the father.

The issues on this appeal

1. The mother’s appeal called into sharp focus the orders made by the learned magistrate on 16 April 2019.  Additionally, the mother applied for an interim relocation order.  Strictly speaking I am only seized of the appeal from the learned magistrate made on 16 April 2019.  As a matter of logic, if that appeal failed the orders made on 16 April 2019 will remain in full force and effect.  Conversely, if the appeal succeeded the recovery order would be set aside without a formal order having been made for the mother and the children to depart Victoria and to relocate in New South Wales.

2. Before descending into a detailed consideration of the evidence in this appeal, an early debate emerged about precisely what I was empowered to consider and what, in the circumstances of this it being a contested interim application, evidence should I consider.  Beyond taking me to the decision in In the Marriage of Robinson and Willis[7] and the decision of the High Court in Harris v Caladine,[8] Mr Moore did not take me to any of the authorities.  So I investigated the state of learning myself.

   [7] (1981) 8 Fam LR 131

   [8] (1991) 172 CLR 84

The nature of the appeal

1. This appeal was brought in reliance upon s 96 of the Family Law Act. Pursuant to s 96(1) of the Act, an appeal lies to the Family Court of Australia from a decree of a court of summary jurisdiction of a state or territory exercising jurisdiction under the Family Law Act. Pursuant to s 96(4) of the Act, the court hearing the appeal proceeds by way of a hearing de novo. Section 96(4) is in the following terms –

   (4)  The court hearing an appeal under this section:

   (a)  shall, subject to subsection (5), proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the court of summary jurisdiction; and

(b)  may make such decrees as it considers appropriate, including a decree affirming, reversing or varying the decree the subject of the appeal.

1. The precise nature of an appeal involving a hearing de novo has been the subject of a litany of decisions, the number of which was described as early as 1982 by Fogarty J in In the Marriage of Robinson and Willis as “a legion of cases”.

2. Naturally, the specific wording of s 96(4) is peculiar to the family law jurisdiction yet the nature of an appeal involving a hearing de novo was the subject of judicial determination soon after the commencement of the High Court of Australia in the 1906 decision of Sweeney v Fitzhardinge.[9]  There the court spoke of the conduct of an appeal involving a hearing de novo.  The court held that all issues must be retried and that the party succeeding below enjoys no advantage because that party must, if able, win for a second time.

   [9] (1906) 4 CLR 716

3. For over a century, it has been the law that appeal is a statutory creation, unknown to the common law, a point made by the High Court in Grierson v R.[10]  Decades earlier, Lord Westbury in Attorney General v Sillem[11] held that “an appeal was the right of entering a superior court and invoking its aid and interposition to redress the error of the court below.”  The High Court embraced that characterisation in South Australian Land Mortgage and Agency Co Ltd v R.[12]  Yet the phrase “appeal” may arise in at least three different contexts thereby being understood to have three different meanings, on which Gavan Duffy CJ and Starke J passed in Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan.[13]  Their Honours held that appeal is the process which may subject –

   a)the whole matter for re-hearing;

   b)a question of law only for review; or

   c)the facts as well as the law for review, namely, whether the orders of the tribunal from which the appeal is brought was correct on the materials it has before it.

   [10] (1938) 60 CLR 431

   [11] [1864] 10 HL Cas 704

   [12] (1922) 30 CLR 523

   [13] (1931) 46 CLR 73

4. In Commonwealth of Australia v Bank of New South Wales,[14] the Privy Council described an appeal as the formal proceeding by which an unsuccessful party seeks to have the formal order of the court set aside or varied in his favour by an appellate court.

   [14] [1950] AC 235

5. The differences between an appeal involving a hearing de novo and other appeals were identified by the Court of Appeal of the Supreme Court of New South Wales in Turnbull v New South Wales Medical Board.[15]  There Glass JA differentiated between an appeal involving a hearing de novo from an appeal on a question of law, an appeal after a trial by judge and jury, an appeal from a judge in the strict sense and an appeal from a judge by way of rehearing.

   [15] [1976] 2 NSWLR 281

6. Soon after the commencement of the Family Law Act, one of the earliest expositions of an appeal from a magistrate as opposed to an appeal to the Full Court was given In the Marriage of Sutton (No 2),[16] a decision of Demack, Watson & Fogarty JJ.  The importance of that decision was identified by the whole court in that case when the court held as follows –

   This appeal raises a very important issue because it is the first appeal to the Full Court from a judge’s decision upon an appeal under s 96 of the Family Law Act, and thus it requires this court to consider the nature of the appeal under s 96.

   [16] (1976) 2 Fam LR 11,256

7. In that case the Full Court carefully examined an appeal by way of rehearing following the commencement of the Family Law Act.  The Full Court traced the learning from the enactment of the Judicature Act in the United Kingdom where the unsuccessful litigant on appeal involved a rehearing of his entire cause, a point Dixon J canvassed in Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignam.

8. The decision in In the Marriage of Sutton (No 2) was concerned with provisions of the Family Law Act, especially s 29, since repealed by the 1983 amendments.[17]  To that extent, certain observations in that case must be approached with caution.  Further, the relevant section of the Family Law Act in operation as at the date of the decision In the Marriage of Sutton (No 2) incorporated the word “rehearing” in s 94(2) whereas in the current version of s 96(4) the operative phrase is “hearing de novo”.  In that case the relevant iteration of the Family Law Act contained the power in s 96 to appeal to a single judge of the Family Court from a decision of a magistrate and the power in s 94 to appeal to the Full Court from a decision of a single judge. Of the appeal to a single judge from a magistrate, in In the Marriage of Sutton (No 2) the Full Court said the following (errors in the original)–

   In summary then, the appeal under s 96 of the Family law Act is an appeal both upon fact and law. The Court has the duty to review the facts upon the accepted principles for appellate reviews of facts. The Court may also review the exercise of discretion by the court of summary jurisdiction, also according to the accepted principles. The court may receive additional evidence within the limits prescribed, but subject to that, the case is determined upon the evidence before the court of summary jurisdiction. The law to be applied is that in force at the conclusion of the hearing of the appeal.

   [17]Family Law Amendment Act 1983 No 72 of 1983, s 15

9. In December 1976 Asche J addressed the distinction between an appeal from a magistrate to a single judge of the Family Court under s 96 and an appeal to the Full Court under s 94 in In the Marriage of Grabar.[18]  The headnote in the decision identified the conflicting approaches adopted only shortly earlier between the conclusions In the Marriage of Watts[19] and In the Marriage of Sanders.[20] In the first, the court held that an appeal under s 94 was by way of rehearing whereas in the second, the court held it was not. That led the editor in the headnote to write that the decision of Asche J was “to be welcomed”.  At all events, in In the Marriage of Grabar, Asche J held that the appeal court under s 96 must come to its own conclusions and make its own findings on the evidence. Asche J pointed out that under s 96 a judge on appeal does not have the advantage of seeing and hearing witnesses, of observing demeanour in the witness box and on questions of credibility, the judge must defer to the observations of the tribunal which had that advantage.

   [18] (1976) 2 Fam LR 11,581

   [19] (1976) 1 Fam LR 11,266

   [20] (1976) 1 Fam LR 11,433

1. The nature of an appeal under s 96 came again before a Full Court In the Marriage of Nowland.[21] The dissenting decision of Asche J demonstrated the emergence of significant confusion or disagreement about the proper approach to be adopted under s 96. When sitting as the presiding judge in that case, Asche J declined to adopt the views of Fogarty & McGovern JJ (who made up the plurality) and Asche J held that the Full Court decision In the Marriage of Sutton (No 2) was wrong.  His Honour took the view that with jurisprudence in its infancy, as was the Family Law Act then in the year 1977, principles of stare decisis should yield to the need for the development of learning that was borne of deep consideration.  The plurality cited the decision of the High Court in Progress and Properties Ltd v Craft[22] for the holding that on an appeal by way of rehearing the court is bound to review the evidence.  Precisely what the appeal court reviewed caused division between Asche J on the one hand and the plurality on the other.  Asche J relied on his Honour’s own decision In the Marriage of Grabar concluding that the appeal process in an appeal to a single judge under s 96 was very different to the appeal process under s 94 to the Full Court.

   [21] (1977) 3 Fam LR 11,262

   [22] (1976) 135 CLR 651

2. The plurality in In the Marriage of Nowland held that the differences of approaches as espoused in Sutton’s case and in Grabar’s case should be resolved by following the approach set out in Sutton’s case. To that the plurality added that on an appeal under s 96(4) additional evidence could be adduced, such a position being consistent with the legislative intendment that an appeal under s 96(4) goes beyond a determination upon the evidence given before the lower court.

3. An appealable decree under the Act must be decisive of rights of the parties, unless the decision is by force of the Act itself made a decree judgment or order, as was held by Hogan J in Hutchinson v Hutchinson.[23]

   [23] (1978) 4 Fam LR 446

4. Act number 23 of 1979 introduced the hearing de novo.

5. Before me, Mr Moore of counsel placed heavy reliance upon the decision of the Full Court in In the Marriage of Robinson and Willis so far as the meaning and nature of an appeal under s 96 was concerned. Separate reasons were given by each member of the Full Court making it necessary to analyse the reasons of each. As the presiding judge, Asche SJ focused on the word “re-hearing” as it presently appears in s 96(4) of the Act. His Honour traced the origin of the phrases “re-hearing de novo” and “hearing de novo” to the decision of Sir Robert Lush in the Queen’s Bench Division case of R v Pilgrim.[24]  There Lush J held that in the absence of words of limitation in the enabling statute, in a rehearing the judge is to re-hear the whole matter and give judgment upon all the evidence that is brought before the court.  Asche SJ held that the decision in R v Pilgrim had been adopted in Sweeney v Fitzhardinge and therefore the Family Court was bound by the decision of the High Court of Australia. Asche SJ recognised that while appeals – whether to a single judge under s 96 or to a Full Court from a single judge under s 94 – are creatures of statute each carries with it the appellant’s entitlement to enter the superior court invoking its aid and interposition to redress the error of the court below. Yet his Honour said that the rights conferred by s 94 and by s 96 were different in so far as their procedures were concerned. His Honour focused on s 96 in particular, holding that the procedure in relation to such an appeal commenced with the applicant’s case and “either party may call witnesses and conduct the case afresh on all issues.” His Honour held that there was no restriction against presenting evidence not presented to the court below or not calling witnesses who were called in the court below. His Honour held that if the judge hearing the case comes to a conclusion different to the conclusion of the court below the error is thereby demonstrated even if the result of the appeal is based on evidence not presented in the court below. In the facts of that case, Asche SJ held that the husband had an appeal as of right under s 96.

   [24] (1870) 6 LR 6 QB 89

6. Fogarty J agreed with the orders proposed by Asche SJ but for different reasons.  Fogarty J’s reasons are of special relevance in my view.  It is useful to distil them in the manner that follows –

   a)the word “appeal” has a variety of meanings and consequences dependent upon the context in which the term is used in legislation;

   b)ultimately, resolving the issue involves construing the relevant statute or section;

   c)the fact that s 96 is described in the section of the Act and in the marginal note as an appeal is important, although not decisive;

   d)s 96 as originally enacted is different to its present form, the differences including deletion of the phrase “a person aggrieved” and the creation of a hybrid exuding characteristics of an appeal along with characteristics of the exercise of original jurisdiction;

   e)the procedure of a rehearing de novo involve a notice of appeal yet no grounds of appeal need be stated;

   f)the applicant in the court below commences the s 96 proceeding irrespective of who is appealing;

   g)parties are free to call evidence irrespective of whether that evidence was called at the original hearing;

   h)the court exercises its own discretion without considering the correctness or otherwise of the original decision; and

   i)the reasons of the magistrate are not relevant.

7. Fogarty J held that the section in its form following the 1979 amendments introduced a process that was unique and attempts to slot it into any particular category of appeal should be avoided. His Honour held that the process introduced by the 1979 amendments to s 96 should not be characterised as an appeal in any real sense but rather, as a process enabling a party to have a second hearing on the merits. His Honour said that a fresh hearing was to be determined by the evidence adduced then and the relevant law was at that date. His Honour said the power under s 96(4)(a) to receive any record of evidence below was facilitative only and that the judge was not reviewing the decision below to find error but rather, the judge was examining the issues afresh in the exercise of that judge’s own discretion.

8. Elliott J also agreed with the orders proposed by Asche SJ but for different, more truncated reasons.  Elliott J relied on the decision of Sir George Jessel MR in Quilter v Mapleson[25] where the Master of the Rolls held that on a re-hearing, judgment may be given as ought to have been given if the case had been so heard at first instance.

   [25] (1882) 9 QBD 672

9. In debate before me Mr Moore placed the mainstay of his argument about the proper construction of s 96(4) on the decision of the High Court in Harris v Caladine. That case was factually different to the case with which I am presently concerned as it involved the review of a hearing before a registrar and therefore s 37A of the Family Law Act was relevant.  While the court considered the phrase “hearing de novo”, nowhere did the court address the specific wording of s 96(4) of the Act, thereby making the holdings in that decision of lesser direct application than other decisions surveyed above. Mr Moore invited my specific consideration of the reasons in Harris v Caladine of McHugh J. There, his Honour focused on constitutional aspects of the legitimacy under ss 71, 77 and 79 of the Constitution of the Commonwealth of Australia of delegating to a registrar of the Family Court of Australia powers conferred upon a Justice of the Family Court of Australia, being a judicial officer of the Commonwealth appointed under Chapter III of the Constitution. McHugh J addressed separation of powers issues as well as s 37A of the Family Law Act. His Honour held that s 37A was valid.

10. Of course, decisions of the High Court are of particular importance in the resolution of any lis pendens.  But the point for which the relevant High Court decision stands must be on point.  I drew nothing from Harris v Caladine that was of relevance or assistance in the determination of this case.

11. Conversely, the decision of In the Marriage of Scott[26] involved an appeal against a decision of a magistrate, precisely as does this case. In that case the appellant entered the witness box and gave viva voce evidence afresh before the judge hearing the s 96 appeal. In the course of the reasons of the judge hearing the s 96 appeal, the judge made adverse credibility findings against the appellant. The appeal to the Full Court proceeded on the basis that the judge hearing the s 96 appeal had erred in findings about the appellant’s demeanour and credibility. Ultimately, the Full Court dismissed the appeal. Yet in the process the Full Court made no criticism of the judge hearing the s 96 appeal in the conduct of the appeal, especially in hearing viva voce evidence and receiving documentary evidence from the appellant.

    [26] (1994) 17 Fam LR 420

12. In Moore & Evers (Summary Appeal),[27] Benjamin J was concerned with an appeal by the mother from a recovery order made by a magistrate on the application of the father.  Benjamin J described the appeal as “a hearing de novo (from the beginning)”.  The case is instructive, not only by reason of its factual parallels with the present case but also because it addressed issues relevant to interim parenting matters.

    [27] [2014] FamCA 947

13. From the foregoing survey of the authorities on s 96(4) appeals, it is possible to state several propositions of law. They are as follows –

    a)the appeal conferred by s 96(4) is a full rehearing and the decision of the magistrate is largely irrelevant as I am not assessing the correctness or otherwise of the magistrate’s decision and instead I am considering the case afresh;

    b)the evidence before me is at large;

    c)irrespective of a party’s description as “appellant”, the party seeking the relief that was sought before the magistrate applies afresh and must demonstrate an entitlement to the relief he or she seeks;

    d)likewise, if the opposite party seeks relief in the form of other or different orders, that application must be separately considered afresh;

    e)the judge hearing the s 96(4) appeal determines the case based on the evidence advanced before that judge by applying the facts as found by the judge against principles of law as at the date of the judge’s decision;

    f)the legion of decided cases that have differentiated between an appeal in the strict sense, an appeal on a question of law, an appeal to the supervisory jurisdiction and such like are not apposite to a s 96(4) appeal and that the reasons given by Asche SJ and separately by Fogarty J in In the Marriage of Robinson and Willis must be followed as the latest and most compelling statement of legal principle on the subject, this decision aside.

A RECOVERY ORDER UNDER ss 67U and 67V

1. Section 67U of the Family Law Act provides that the court may, subject to s 67V, make such recovery order as it thinks proper. A “recovery order” is defined in s 67Q. Among the several meanings there set out, a recovery order includes an order made by a court requiring a parent (here, the mother) to return the child to a parent of the child (here, the father). It also includes an order authorising or directing a person or persons to provide assistance for the purpose of finding a child and delivering a child to a parent.

2. Section 67V requires a court to have regard to the best interests of the child as the paramount consideration when deciding whether to make a recovery order. Section 60CC makes extensive provisions for the determination of the best interests of the child. In the passages below I have considered the provisions of s 60CC.

3. Before going to them, it is desirable to say something about the proper approach to be adopted in the determination of an interim parenting application where factual matters are disputed and are untested by cross examination.  A large number of decisions, especially at Full Court level have made observations that guide me.  It is desirable to record their instructions.

4. In Goode & Goode,[28] the Full Court identified an array of matters that should be addressed on the hearing of a disputed interim parenting application.  As this is a rehearing of a contested application for the making of a recovery order in which extensive affidavit material has been filed by both parties none of which has been tested by cross examination, the observations in Goode & Goode provide useful parameters.  There the Full Court held that the judge must –

   [28] (2006) 36 Fam LR 422

   a)identify the competing factual positions advanced by the parties;

   b)identify the issues in dispute;

   c)identify any agreed or uncontested relevant facts;

   d)where possible, address s 60CC(3) issues;

   e)decide whether the presumption of equal shared parental responsibility is in the best interests of the child or children;

   f)establish whether the presumption under s 61DA is rebutted;

   g)consider whether equal time with both parents should be ordered;

   h)if equal time is not appropriate, whether an order should be made that the child or children should spend substantial and significant time with the parent,

   i)if neither equal time nor substantial and significant time is in the best interests of the child or children, what orders in the discretion of the court are in the best interests of the child or children; and

   j)consider issues of procedural fairness.

5. Pausing there, in response to those specifications in Goode & Goode, several matters may be recorded.  In no special order, the factual positions of the father and mother were –

   a)for the father, he contended in essence that the mother unilaterally removed the children from Victoria and relocated in New South Wales for no valid reason without his consent; and

   b)for the mother, she contended in essence that by reason of substantial and well documented accounts of family violence she was driven to relocating to a place where she and the children are safe and are not exposed to family violence, where she has a sophisticated network of support and that for the protection of the children, she departed Victoria without notice to the father in case he stopped her and the children.

6. Very few facts beyond the respective ages of the parents, their rental arrangements, and the litigation history of this dispute were agreed.

7. Questions of the father’s time with the children are addressed below.  The issue of the mother’s application for long term sole parental responsibility must await the provision of evidence from a family consultant. 

8. In Marvel v Marvel[29] the Full Court addressed the complications that presented themselves when on an interim hearing the court is called upon to make findings of fact on disputed evidence.  The Full Court embraced the cautioning remark sounded in SS & AH[30] where it was held that findings made at an interim hearing should be made with great circumspection.

   [29] (2010) 43 Fam LR 348

   [30] [2010] FamCAFC 13

9. In Deiter v Deiter,[31]a differently constituted Full Court held that interim hearings are necessarily truncated hearings and a court must be cautious to avoid being drawn into contentious trial issues.  Instead, the court should look for agreed issues, care arrangements prior to separation, current circumstances of the parties and the children and the parties’ respective proposals.

   [31] [2011] FamCAFC 82

10. In Eaby & Speelman[32] the Full Court held that frequently the judge must do the best he or she can by weighing the probability of competing claims and assessing the likely impact on the children in the event that a controversial assertion is relied upon or rejected. The decision in Banks & Banks[33] was to like effect as was the decision in Salah & Salah.[34]

    [32] [2015] FamCAFC 104

    [33] [2015] FamCAFC 36

    [34] (2016) 56 Fam LR 299

11. In Redmond & Redmond[35] the Full Court held that guidance is often provided by independent expert evidence, even where on an interim contested hearing significant disputes exist in relation to the evidence on which reliance will be placed.

    [35] [2014] FamCAFC 155

12. In this case the disputed evidence was at its highest in reference to the mother’s allegations of family violence.  Interestingly, the father did not focus to any great degree in a challenge to the mother’s assertions about the father’s conviction for driving while having a blood alcohol content in excess of .05%, his driving while unlicensed, his driving with the eldest child in the car while he was unlicensed, prior assault episodes, and his marijuana use.  Yet the father’s counsel raised the oddity of the mother’s allegations of suffering fear of the father while concurrently exchanging with him text messages of a loving nature.  Mr Moore submitted in effect that I should regard her assertions of fear with suspicion.  There is a superficial attraction to that submission yet on the hearing of this interim application, it is dangerous for me to make any finding about the likelihood of allegations concerning family violence being demonstrated or dismissed.  There is no evidence of an independent expert.  It was then necessary to examine the evidence of the events as they existed immediately prior to separation.  The father said the children’s lives with him were favourable.  Conversely, the mother said she lived in fear. She went to some particularity of the episodes of family violence in her police statement.  Conversely, the father has not provided evidence in opposition of the specific allegations of family violence alleged by the mother beyond a bare denial and an assertion that the children are safe in his care.

13. In any assessment of the best interests of the children in this case it is necessary for me to give greater weight to protecting the children from physical or psychological harm by reason of being subjected to or exposed to abuse, neglect or family violence. Under s 4AB of the Family Law Act, “family violence” is defined extensively including assault and other physical acts of violence along with stalking and repeated derogatory remarks, unreasonably denying financial autonomy, unreasonably withholding financial support, deprivation of liberty and preventing a family member from keeping connections with family, friends or culture. On the mother’s version of the evidence, the father offended several provisions of s 4AB.

14. At trial, any one of the matters raised by the mother as representing family violence may not be proved.  It is not appropriate for me to gainsay that the allegations will be made out.

15. However, if the allegations the mother makes about the father’s violence towards the children are ultimately proved, that may have a bearing on orders to be made in relation to his time with the children and whether an order for equal shared responsibility is appropriate.

16. Taking the father’s case, it is relevant to observe that no orders have yet been made in this case concerning parental responsibility.

17. Before me the father’s counsel put forward a handwritten form of order, created at my request, about the father’s proposal.  It was as follows –

    1.That all previous orders be discharged save for paragraph 3 + 6 of the 16.4.19.

    2.That the children C born … 2005, X born    2016 and Y born … 2018 be returned to live in Town A area of Victoria on or before 5.00pm on 7 June 2019, upon and conditional on the payment by the applicant father of 50% of the rental payments for the current lease of G Street Town H until further order.

    3.That the children’s time with the father commence immediately upon the children’s return to Victoria.

    4.That a recovery order is issued in the event the children are not returned per para 2.

1. No determination has yet been made about parental responsibility of any of the children.  As is evident from the foregoing, the mother seeks at trial an order for sole parental responsibility.  In my view long term issues about parental responsibility must await a more detailed consideration, preferably with the benefit of evidence from a family consultant.

2. That said, the objects of pt 7 of the Act, as distilled from s 60B include –

   a)ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children;

   b)protecting the children from physical or psychological harm from being subjected to or exposed to family violence;

   c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.

3. Returning to the matters I have been directed by the case law to consider on this contested interim application it next became relevant to address the issues set out in s 60CC(3). Not all were relevant, however.

4. No evidence was advanced of the wishes of the two youngest children. It must not be forgotten that the middle child is two and the youngest is an infant. Whatever may have been said of the eldest child’s wishes I was none the wiser about them. Subsection (a) of s 60CC(3) was not addressed by the parties to any meaningful degree.

5. So far as subsection (b) of s 60CC(3) was concerned, on the version of the evidence given by the mother, her relationship with all three children was loving and favourable. On the father’s version of the evidence his relationship with the children was similarly loving and favourable. On the wife’s version of the evidence about the father’s relationship with the children, that relationship was one of hostility and fear. It was also a violent relationship. At the risk of repetition, the father denied the allegations of his violence towards the children.

6. Subsection (c) of s 60CC(3) required me to take into account the extent to which each parent has taken or failed to take the opportunity to participate in decision making, to spend time with the children and to communicate with the children. Prior to separation and subsequent thereto, the mother has been deeply involved in those issues. Prior to separation, the father’s evidence revealed that he was involved in those issues yet his communication with the children, on the mother’s untested version of the evidence, was frequently aggressive in that the father often yelled at the children or he spoke harshly towards them particularly when they woke him in the mornings.

7. The issue in subsection (ca) was not squarely addressed by the evidence as neither parent raised a specific incident of maintaining any one of the children.  Having said that, it must be recognised that the financial position of the father was relevant in that he has been unemployed for some time, he had not filed a financial statement and he had been renting the former matrimonial home.  At least one issue for trial will be the father’s financial means.  The evidence (essentially agreed) was that the father was unemployed and he currently lives in his mother’s home.  The evidence (also, essentially agreed) was that the mother had resigned from her employment in the State of Victoria and was not working or earning income while currently residing in New South Wales.  The mother’s family support network appeared to ameliorate her current financial situation.

8. In respect of subsection (d), Mr Moore of counsel for the father placed considerable store in the effect of separation of the children from the father.  Having said that, the father focused on the suffering he was enduring by reason of the children currently living interstate.  That led Ms Colla of counsel to submit that the father was not child-focused and that he lacked insight into the welfare of the children, preferring instead to focus on his own circumstances, not taking responsibility for the reason for the mother’s departure, namely, family violence.

9. This subsection directs attention to the likely effect of separation on the children.

10. The mother, as the most likely person capable of giving evidence about the children subsequent to their departure to New South Wales, gave evidence that the children are doing very well in their new environment.  She said nothing about the children expressing sorrow or even unhappiness at not seeing their father since February of this year.

11. Subsection (e) requires me to investigate the practical difficulty and expense of the children spending time and communicating with one parent and whether that difficultly and expense will substantially affect the child’s right to maintain personal relations with both parents.

12. This case raised the very real obstacles occasioned by the distance between the father’s usual place of residence and the area in New South Wales where the children now live.  The father does not drive and must rely on public transport – train or coach.  Self-evidently, that is inconvenient and, over time, is likely to be expensive.  The mother contended that the father’s circumstances in Victoria are not such that he has permanent and unbreakable ties with Victoria as he is unemployed, he used to rent but now lives with his mother and he gave evidence about his mother residing in Victoria.  The mother said the father could easily relocate to New South Wales to be nearer the children.  In answer, Mr Moore submitted, in effect, that such a suggestion rather put the cart before the horse because the mother should never have left Victoria in the first place and a suggestion that the father can now relocate to the place where the mother unlawfully went inverts the proper approach to this situation.  I recognise that practical difficulties and expense may be incurred by the father being required to travel to New South Wales if his recovery order application is dismissed.

13. Under subsection (f) I must address each parent’s capacity and that of any other person to provide for the needs of the children including emotionally and intellectually.  It is necessary to examine each child in turn.  The eldest is at school.  There was very little evidence about the involvement of her natural father in her life.  The father in this case seems to have assumed the role of her actual father.  The father gave evidence that the eldest child refers to him as “daddy” and that after school he reads to her.  He also said he had time to devote to the children (collectively) as he was between jobs.  Those count very much in the father’s favour.  Yet if the mother’s evidence is correct that the father has become increasingly angry, more recently violent, the fact that the father reads to the eldest or that she calls him daddy is of considerably lesser importance.  To that must be added that in the current regime in New South Wales the mother’s network includes her siblings, her parents and friends all of whom can provide for the eldest child’s emotional and intellectual needs.

14. The middle child is very young.  She is in a child care group connected with a church in New South Wales.  I am prepared to accept that prior to separation the father undertook his role as a parent favourably providing for the middle child’s emotional and intellectual well-being.  As with the eldest child, if the mother’s evidence is accepted at trial that the father has become increasingly angry and more recently violent, then the father’s otherwise virtuous parenting is necessarily diminished and would detract from his provision towards the emotional and intellectual development of the middle child.

15. The youngest child is breastfed. Mr Moore correctly pointed out that the father’s contribution to the youngest child’s emotional and intellectual fabric is waning the longer the father remains out of the youngest child’s life.

16. Under subsection (g) it became relevant to consider, in relation to each parent and in relation to each child maturity, lifestyle and background and the other matters set out in that subsection.

17. Taking first the mother, certain matters were either agreed or were uncontested.  They included –

    a)her age;

    b)her work history, education and job prior to her taking maternity leave;

    c)her previous relationship with Mr B; and

    d)her role and performance as the mother of the children.

18. I was unable, at least at this interlocutory phase of the case, to detect any noxious behaviour or adverse lifestyle choices engaged in by the mother.

19. In relation to the father, certain matters were not challenged, although it would be incorrect to say all of those matters were agreed.  They included –

    a)his job history and the fact that he is presently unemployed;

    b)his previous encounters with the criminal justice system;

    c)his use of marijuana; and

    d)his alcohol consumption and its frequency.

20. It seemed that the mother was mature and her lifestyle choices were sound, at least insofar as I am permitted or required to make a factual finding to that effect at this junction of the litigation.  Conversely, I entertained misgivings about the father’s maturity and lifestyle choices, although I expressly decline to make findings of fact about the matters raised in the paragraph immediately above.  Instead I couch my observations of those issues with circumspection, as the Full Court requires me to do.

21. So far as issues relating to maturity, sex, lifestyle and background as they related to the children were concerned, very little evidence was put before the court.  Evidence from a family consultant on this point will be needed.

22. Subsection (h) was not relevant.

23. Next, it became necessary for me to address the issues raised in subsection (i), namely each parent’s attitude to the children and to the responsibilities of parenthood as demonstrated by each parent.  In addressing this issue it is relevant to observe that beyond the mutual intervention orders no allegations of family violence were levelled against the mother.  For that matter beyond his disapproval of the unilateral relocation the father said nothing in his evidence by which it could be contented that he was critical in any way of the mother, her attitude to the children or her attitude to the responsibilities of parenthood.  The same cannot be said of the father. In making that observation, again I recognise that the allegations against the father in relation to family violence are unproved and untested.

24. Issues of family violence have already been canvassed for the purposes of subsection (j).

25. The details of interim family violence orders have also been canvassed above.

26. So far as subsection (l) is concerned, in my view it is preferable to make an order that would be least likely to lead to further litigation concerning the children.

THE ABSENCE OF EXPERT EVIDENCE

1. From the foregoing it will be readily apparent that on key – dare I say pivotal – issues, no evidence is before me from an expert family consultant.

2. That has seriously impaired my ability to address many of the issues that I am by the legislation required to consider on the interim hearing of the father’s application for a recovery order and on the mother’s application for a relocation order.  The absence of that evidence has meant that in the consideration of this de novo hearing the evidence –

   a)is untested;

   b)consists of assertion and denial; and

   c)in many instances is incomplete as the details of the father’s basis for denying certain of the mother’s allegations has not been given.

3. As it is undesirable for me to make factual findings at this stage, by reason of the factual conflict in the evidence I must proceed –

   d)based on the probability of the mother’s assertions being as she asserted; and

   e)looking for independent verification of the mother’s assertions.

4. Yet the Full Court instructs that I should avoid making factual findings at this stage.

5. In debate with Ms Colla she agreed with a question I put to her to the effect that the success of her case depended in large measure on her successfully establishing that the incidents of family violence on which she relied in fact occurred in the way the mother alleged.  Against that Mr Moore cautioned me from acceding to Ms Colla’s contentions because the entirety of the wife’s evidence, so he said, about the existence of family violence was denied by the father and therefore, being disputed and conflicting evidence that the Full Court says should not be resolved on an interim hearing, I should refuse the mother’s appeal.

6. Both contentions were open, it seemed to me.

7. However, the mere fact that the evidence is disputed is not the end of the matter.  Were it otherwise, this court’s hands would be tied every time a respondent challenged a factual assertion at an interim hearing.

8. The proper approach to be applied on the hearing of this appeal under s 96(4) is set out hereunder. First, this is a de novo hearing where the father must commence afresh his application for a recovery order. Second, in determining that application for a recovery order I must consider and assess the evidence, some of which yet not all of which is disputed. Here, the mother’s evidence of the fact, nature and extent of family violence is disputed by the father. Third, any finding about disputed evidence must be expressed with considerable circumspection. Fourth, having regard to the critical importance of issues raised by the mother about family violence I must take into account certain uncontested evidence including the existence of mutual family interim violence orders against the parties and that the father has not given any details of his version of the incidents alleged by the mother. Conversely, the mother’s particulars of the allegations are set out in her police statement. While it is true that she does not descend to details in that statement about dates, times and places, she raises evidence that has not been answered on matters squarely germane to family violence, as defined in s 4AB of the Family Law Act.  Fifth, as the Full Court held in SS v AH, in the face of disputed evidence the judge will often have little alterative than to weigh the probabilities of competing claims and to assess the likely impact of those competing claims on the children if I act upon or reject the disputed evidence.

9. To my mind that last point is the determining feature of the mother’s appeal. Let me explain.

10. If I dismiss the mother’s appeal, the recovery order will operate in such a way that the children are physically, and if necessary, forcibly, returned by police to the father in Victoria. If the allegations of family violence are proved at trial, that means I will order the children to be returned to a violent environment. It must not be overlooked that the mother has alleged that the father has been violent to the children, independently of the allegations of his violent behaviour towards the mother. I refuse to make an interim order returning the children to the father in circumstances where the father may at trial be found to have engaged in family violence. In my judgment this court must act protectively towards the children and remove them from any risk associated with family violence. To do so is consistent with the imperative recorded in s 60CC(2A). That requires me to give greater weight to a consideration of the need to protect the children from family violence than the benefits the children will enjoy from a meaningful relationship with both parents.

11. In those circumstances, upon this rehearing I am of the view that it is not in the best interests of the children to order the return of the children to the father.  While not strictly necessary to so conclude, I take the view that the magistrate erred in making the order on 16 April 2019.  The order made thereafter was a nullity as by then the Federal Circuit Court of Australia had been seized of jurisdiction.

12. That means I allow the mother’s appeal in relation to the recovery order and dismiss the father’s application for a recovery order.

THE RELOCATION APPLICATION

1. Ms Colla proposed for me to decide upon her client’s application for a relocation order.

2. The state of the evidence on that issue is in an embryonic state.  No evidence about the best interests of the children in granting or refusing that application has been given, especially by a family consultant.

3. Several important statements of principle bearing upon legal and factual issues associated with relocation applications call for consideration.  In the passages that follow I have extracted the more salient propositions of law that guide the resolution of this application for an interim relocation order.

4. The starting point is whether it is in the best interests of the children to make such an order.  Of course, that is not the only consideration.  And, at the risk of repetition, no parenting order has been made in this case yet.

5. This case returns before his Honour Judge Burchardt on 10 July 2019, a matter of weeks away.  If I may say with the greatest respect, his Honour is an extremely experienced and able judge in the family law jurisdiction.  When the state of the evidence is better developed, including hopefully by then with the inclusion of a s 11F report or other similar family consultant’s evidence, his Honour will be better equipped than am I at this stage to determine the mother’s application.  In urgent cases, of which this case is not one, it may be appropriate to determine what has been described as the “very difficult issues in cases involved a relocation”.  It was held in Morgan v Miles[36] that the arrangements which will be in the children’s best interests should not be determined on the hearing of an abridged interim application.  The decision in C v S[37] supports that conclusion.

   [36] (2007) 38 Fam LR 275

   [37] [1998] FamCA 66

6. The Full Court in Sterry v Sterry[38] held that in an appropriate case, in an application for a relocation order, prioritising the child’s safety does not represent error.  In Browne v Keith,[39] it was held that the trial judge in that case erred when failing to refer to the High Court’s observations in this arena in MRR v GR.[40]  Curiously, neither of the decisions in Browne v Keith or MRR v GR were referred to by one of the most recent expositions on point by the Full Court in Sterry v Sterry.

   [38] [2017] FamCAFC 226

   [39] (2015) 55 Fam LR 208

   [40] (2010) 240 CLR 461

7. It seemed to me that upon a proper construction of the prevailing case law, several things may be said in relation to the mother’s application for a relocation order.  First, the evidence in its current form is embryonic and must be supplemented for the point to be properly addressed.  Second, among the many issues to be addressed are the best interests of the children.  Other considerations of relevance are elsewhere set out in the Full Court decision in Marvel v Marvel being provisions in legislation of “labyrinthine complexity”.  Third, in view of the comments expressed by Boland J in Morgan v Miles, it is not a preferable course to determine a relocation application at an abridged interim hearing, especially when there is no evidence from a family consultant.

8. In those circumstances I will not pronounce upon the mother’s interim application for a relocation order.  That went beyond the appeal against the magistrate’s orders on 16 April 2019.

The father’s time between now and 10 July 2019

1. The father should be permitted time with the children between this date and 10 July 2019 when this case is next before the Federal Circuit Court.  If he is able to travel to New South Wales to physically attend upon the children, having regard to the allegations of family violence his time should be supervised.  The mother has proposed supervision with E Group Town D.  Whether the father takes up that suggestion will depend on whether he travels to be nearer the children in the intervening period between this date and 10 July 2019.  If he is unwilling or unable to travel to New South Wales to physically visit his children (including the eldest child) then any time he spends with the children should be by electronic means, preferably by telephone or Skype.  The mother will have to facilitate that. 

ORDERS

1. I dismiss the father’s application for a recovery order made in paragraph 3 of his initiating application dated 22 March 2019.

2. The mother’s application for a relocation order made in paragraph 4 of her amended response dated 31 May 2019 is adjourned for further hearing before his Honour Judge Burchardt on 10 July 2019.

3. Until that date, the mother will have sole parental responsibility for the children.

4. Between this date and 10 July 2019 any time that the father physically spends with the children in New South Wales is to be supervised by E Group.

5. The father is to have time with the children by telephone or Skype between this date and 10 July 2019 for up to a half hour per day.

I certify that the preceding one hundred and thirty-one (131) paragraphs a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 7 June 2019

Associate: 

Date:  7 June 2019