Quaid and Corbett-Smythe

[2007] FamCA 576

FAMILY COURT OF AUSTRALIA

QUAID & CORBETT-SMYTHE [2007] FamCA 576

FAMILY LAW - CHILDREN – Return of children following issue of a Recovery Order – Father seeking residence of eldest child and to spend time with 7 month old daughter – Order made pursuant to s 91B Family Law Act and adjourned – Mother refused to remain in Victoria having left earlier in contravention of court orders – Doubts as to father’s ability to care for children and concerns as to his conduct.

Family Law Act 1975 (as amended)

APPLICANT: Mr Quaid

RESPONDENT: Ms Corbett-Smythe

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 927 of 2006

DATE DELIVERED: 24 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 24 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr L E Foreman

SOLICITOR FOR THE APPLICANT: Tyler Tipping & Woods

COUNSEL FOR THE RESPONDENT: Mr S P Cash

SOLICITOR FOR THE RESPONDENT: Cash & Stavroulakis

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms C J Jenkins

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That until 28 May 2007:

   (a)the children, a son, born … June 2003 and a daughter born … September 2006 live with the mother;

   AND THAT

   (b)the father spend time with the son from 10.00 am until 4.00 pm on Saturday 26 May 2007 and with the daughter from 10.00 am until 11.00 am on Saturday 26 May 2007.

2. That the father’s time in paragraph 1(b) hereof be supervised at all times by the paternal grandfather, Mr Q.

3. That for the purposes of the father’s time in paragraph 1(b) hereof, the mother do deliver the children to the father at the main entrance to the local train station at the commencement of his time and that the father deliver the children to the mother at the local train station at the conclusion of his time.

4. That all extant applications be otherwise adjourned to the Judicial Duty List at 10.00 am on 28 May 2007.

5. That pursuant to section 91B of the Family Law Act 1975 the Secretary of the Department of Human Services Victoria intervene in these proceedings AND THAT by way of an urgent request the Independent Children’s Lawyer do contact and advise the Department of Human Services of the order made this day and the circumstances surrounding the making of the order.

6. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. That preparation of this order be expedited.

8. That the ex tempore judgment delivered this day be transcribed, placed on the court file and made available to the practitioners.

(9) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 927  of 2006

Mr Quaid

Applicant

And

Ms Corbett-Smythe

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in a Judicial Duty List.  Dr Foreman appears for the Applicant Father, Mr Cash for the Respondent Mother and Ms Jenkins for the Independent Children's Lawyer.

2. By way of short background, the proceedings were commenced with the father filing an Application on 9 May 2006 in the Federal Magistrates Court for shared care of the son, who was born on … June 2003.  He later caused to be filed an Amended Application on 13 December 2006 that the daughter, who was born on … September 2006 live with the mother and spend time with him. 

3. A Response was initially filed by the mother on 31 May 2006 seeking an order that the son live with her and that the father's time with the child be supervised.  I see from the file that a further Response was filed by her on 13 April 2007 that both children live with her and the proceedings be transferred to Western Australia.

4. The father was born on … May 1962 and the mother was born in Western Australia on .. January 1973.  The parties met and commenced cohabitation in about May 2002.  Following unhappy differences between them they separated in March 2006.  I note that there is a report by a Family Consultant, Ms M which was filed on 28 November 2006. 

5. A number of court orders have been made in the proceedings thus far and the father alleges breaches of those orders by the mother.  For example, an order was made on 5 September 2006 restraining the mother from leaving the Gippsland area in the State of Victoria. 

6. I do not purport to suggest by any measure that my short summary to this point in any way reflects the detail relating to the proceedings as it has come before me in the Judicial Duty List.  However, I do note, for example, that on 14 December 2006 an order was made by consent that the father spend time with the son each Saturday from 9 am to 5 pm and each Tuesday from 10 am to 4 pm.  It was further ordered that such visits be supervised by the paternal grandfather.  It was also ordered by consent that the father spend time with the daughter for one hour at the commencement of those visits and that a Mr B be present during the visits.  The father and paternal grandfather were to collect and return son from the L railway station.  At that time all extant applications were otherwise adjourned to the Senior Registrar's Duty List on 30 January 2007.  

7. Apparently, some time after that and in early January 2007, the mother fled the jurisdiction.  I note on the file an order made by Mushin J on 8 February 2007 that the mother “attend court personally” at the adjourned Judicial Duty List hearing on 26 March 2006 and by no later than 19 March 2007 she comply with paragraph 3 of the order made at the Federal Magistrates Court on 5 September 2006 (restraining her from removing the son from the Gippsland area) by returning that child to that area.  His Honour further ordered that in the event the mother breached those orders, liberty be reserved to the father and the Independent Children's Lawyer to apply for a warrant for the arrest of the mother and/or a Recovery Order, despite whether the mother appeared or not.

8. The matter came next before Carter J on 26 March 2007. On that day the mother was represented by a Ms Chape, via telephone link. Her Honour ordered that, until further order, both children, live with the father and made an order pursuant to s 67U of the Family Law Act (1975) for a Recovery Order.  Her Honour then adjourned the father's Form 2 Application, which had been filed 2 February 2007, until 19 April 2007.  The mother was ordered to make, file and serve any Response or affidavit to be relied upon at the adjourned hearing and that such documents be filed and served before a specific date.

9. The matter then came before Young J on 19 April 2007.  Again, all parties were represented.  Following submissions, his Honour ordered a warrant be issued to the mother as soon as practicable to show why she departed the State of Victoria and the Gippsland area with the children in an alleged breach of the order of Phipps FM made 5 September 2006 and failed to facilitate their return to Victoria.  Execution of that warrant was stayed for 28 days.  His Honour further ordered that pursuant to the Recovery Order made by Carter J on 26 March 2007, each of the children be returned to Victoria, together with their mother, and that they to be delivered up to the father at a date and venue in Melbourne as organised by him.  His Honour made further and other facilitating orders.

10. In the result the matter comes before me this day.  It has been an interesting day and following the matter being called on this morning, it was stood down for what I hoped to be sensible discussion between the parties.  Discussions did take place.  The matter was next mentioned early in the afternoon and Mr Cash, in a most frank submission, informed me that the mother did not propose to remain in Victoria and would deliver the children to the father and then return to Western Australia.  Apparently some enquiries have been made from listings and it appears that a two-day hearing is available on 25 and 26 June or 28 and 29 June 2007, alternative a three-day hearing on 23 to 25 July 2007.  That would be by way of a final hearing.  It was hoped, somewhat piously in my view, that a report could be obtained prior to that time.  That may well be so, but I cannot be confident about that. 

11. Mr Cash informed me that the “adoptive mother” of the mother in the proceedings was present in court, namely Mrs C.  The adoptive father, Mr C, he said, lived in Perth with his wife.  He informed me that Mrs C had accompanied the mother to Victoria and I note that she sits this day in court with her.  I was further informed that the maternal grandparents, as I will call them, have filed an application to Intervene in the proceedings, but the application and various affidavits have yet to be served.

12. I was further informed by Mr Cash that the mother had only lived in the Gippsland area for a period of time, something short of a year.  He said that “no-one there” would have her again, due to the behaviour of the son and that the mother had no place to live. 

13. Dr Foreman submitted that the father had suitable accommodation and that he could care for the children on a full‑time basis.  He was not working.  He lived “around the corner” from his own father.  In relation to a number of submissions made by Ms Jenkins, and I will shortly refer to them, detailing the husband's prior criminal history and various allegations that have been made and for which he may face trial, Dr Foreman posed the rhetorical question, namely that if he bore the stigma accorded to him, then why would the mother propose to leave the children with him? 

14. Dr Foreman submitted that her instructions were that there are a number of places where the mother could stay in the area where she previously lived in the Gippsland area and reminded me, and significantly so, that the mother had “fled the jurisdiction” and which, on the face of it, is an arguable, flagrant breach of a court order showing utter disregard for the authority of the court.  Dr Foreman informed me that the father had housing available and, as I understand it, had sought assistance from some welfare organisation. 

15. Ms Jenkins, properly so in my view, opened her submissions describing the situation as "most regrettable" and that on the face of the material (which remains untested) the Independent Children's Lawyer had some real concerns about the father.  I was referred to subpoenaed documents.  It was suggested that there was a background of domestic violence, of an alcohol problem suffered by the father and that the father was facing certain criminal charges in the future which included an allegation of rape of the mother.  I was informed that a committal hearing was to take place on 12 June 2007.  There appear to be further charges of serious assaults upon the mother and of reckless conduct endangering life.  The father had recently received a suspended sentence of one month's imprisonment relating to a charge, as I understand it, of threats to kill.  However, the fact of the relative leniency of the imposed sentence may reflect the gravity with which the sentencing magistrate visited the facts and then put before him, I dare say on a plea situation.  They are the sort of matters that have yet to be tested. 

16. It was submitted by Ms Jenkins that with the mother remaining in the general area where she had earlier resided, that the proposal of the Independent Children's Lawyer was that the father spend time with the son each Monday, Thursday and Saturday between the hours of 10 and 4 pm to be supervised at all times by the paternal grandfather and to spend time with the daughter for one hour at the commencement of those visits.  The father and the paternal grandfather were to collect and return the son.

17. The proposals advanced by the Independent Children's Lawyer, which struck me as having plain, good commonsense attached to them given the interim urgency and the measures available at this stage, were sensible ones.  Ms Jenkins referred to the fact that a report had earlier been made by Ms Matthews which did not propose supervision.  Ms Jenkins submitted there were also concerns about the mother and that it apparently appears from the report that Ms Matthews was of the view that the father “had more insight” in parenting skills, than the mother. 

18. It is a regrettable situation with which the court is faced and in the circumstances I had further discussion with all counsel and the matter stood down for further discussion. I earlier indicated that I proposed to make an order pursuant to s 91B of the Act that the secretary of the Department of Human Services intervene in the proceedings, and I will make an order in the usual form pursuant to that section.

19. Following discussion between Counsel, I have been informed by Mr Cash that the mother will remain in Melbourne.  She has some accommodation at an Aboriginal facility in the inner suburban area, and whilst expressing some concern about the paternal grandfather, (which is made for the first time) supervising the children, she will agree to a one-hour supervised period to be spent with the father and the daughter and six hours with the son this coming Saturday. 

20. I have been provided with a Minute of Proposed Orders. I will adjourn the proceedings over to the Judicial Duty List for Monday, 28 May 2007. I propose to make the usual order pursuant to s 91B of the Act with an urgent request that the Independent Children's Lawyer contact and advise the Department of Human Services of the order made this day and the circumstances surrounding the making of the order. My associate will proceed to have that order prepared and it should be emailed to the Department urgently. I will expedite the preparation of the orders.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  13 June 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as QUAID & CORBETT-SMYTHE