Quinlivan and Quinlivan

[2016] FCCA 2964

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUINLIVAN & QUINLIVAN [2016] FCCA 2964

Catchwords:
FAMILY LAW – Recovery of Child.

Legislation:

Family Law Act 1975

Applicant: MR QUINLIVAN

Respondent: MS QUINLIVAN

File Number: LNC 83 of 2012

Judgment of: Judge McGuire

Hearing date: 24 October 2016

Date of Last Submission: 24 October 2016

Delivered at: Launceston

Delivered on: 24 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Mooney

Solicitors for the Applicant: Matthew Verney Lawyer

Counsel for the Respondent: Ms Quinlivan in person

Solicitors for the Respondent: Not Applicable

ORDERS

1. That the mother return the child, X, born (omitted) 2001 to Tasmania before 9 pm on Thursday, 27 October 2016, with the mother to be responsible for the payment of the child’s one-way airline flight from Brisbane to Launceston direct and the father, through his solicitors, to advise the mother by email of the day and time of the proposed flights.

2. That in all other respects the orders of 11 March 2015 remain in full force and effect. 

3. That the mother make, file and serve a response and responsive affidavit within 14 days of the date of these orders.

4. That pursuant to s.68L(2) of the Family Law Act1975, the child X born (omitted) 2001 be independently represented, and it is requested that that the Legal Aid Commission of Tasmania make arrangements as soon as practicable to secure such representation.

5. That as soon as practicable upon appointment by the Legal Aid Commission of Tasmania or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

6. That within 48 hours of notification of the appointment of the Independent Children’s Lawyer, each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party will be an order in the usual terms for the appointment of an independent children's lawyer with the Legal Aid Commissioner of Tasmania being requested to facilitate that appointment, but with a request that the previously appointed independent children's lawyer, David Lewis, barrister, be re-appointed. 

7. That the matter is listed for mention, directions and trial directions in the duty list of the Federal Circuit Court at Launceston on 12 December 2016 at 11.30 am AEST and that the mother be permitted to attend by telephone.

8. That a copy of my reasons of this day be taken out, settled and placed on the court file.

9. That the father have leave to apply on short notice and, if necessary, by telephone, in respect of the execution of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 83 of 2012

MR QUINLIVAN

Applicant

And

MS QUINLIVAN

Respondent

REASONS FOR JUDGMENT

1. In the matter of Quinlivan, before me is an application in respect of one of the parties’ three children, X, X’s date of birth is (omitted) 2001, so she is 14 years of age. I am told and it is not contradicted that X has some developmental and learning difficulties that perhaps put her at an age in her development less than her chronological age and perhaps up to four or five years. 

2. The background of the application is that the father is the applicant.  He seeks an order for the return of X to his care in Tasmania.  The mother resides in Queensland.  X’s two siblings who are 12 and eight years of age also reside in Tasmania.  Significantly, in my view, there was litigation in 2015 in this Court, litigation in respect of X and each of her siblings. The matter was resolved by way of consent orders meaning, I can infer, that the parents properly informed with the assistance of a family report and an Independent Children's Lawyer and perhaps the wisdom of my predecessor, were able to reach a consensus as to the children’s living arrangements.  That involved, inter alia, X remaining living in Tasmania. 

3. The orders that were made and were made by consent involved, again significant, in my view, X spending some one-on-one time with her mother in Queensland.  I understand that there are step-siblings in Queensland too. The rationale behind this application is that in the most recent Tasmanian school holidays over September and October of this year, X went on a pre-arranged visit to her mother and was not returned.

4. The application is brought on before me in a sense of urgency because, quite frankly, X’s status quo established by the consent orders of 2015 is disturbed.  The father’s case is a simple one being that there has been recent litigation in respect of the best interests of X and her two siblings.  That litigation was resolved by way of consent orders.  The parties at the time had the benefit of the facilities made available to them by this court including an Independent Children's Lawyer and that confirmed the status quo for X of living in Tasmania which was the situation for some considerable time prior to the making of those orders.

5. His case is that X should not be permitted to be the author of her own destiny as a 14 year old - but in any event, where this young lady suffers some difficulties that perhaps do not allow her on the face of the material before me to rationalise such important decisions. 

6. The father supports his application by saying that in X’s case, the mother has unilaterally retained X from an agreed and/or court ordered period of time which has disturbed not just her status quo, but has removed her from her two siblings of which I can infer, given their ages, there was a form of family unit.  She has been removed from her school and her peer group relationships.  She has been removed from her medical practitioners including some psychological or emotional counselling which she has been receiving.

7. The mother’s case, as I understand it, is that X presents as a special case.  She is 14 years of age and the mother’s material suggests that X has expressed a preference to remain with her and that X has expressed some difficulties in her home relationships including with her step-mother and that X is receiving some psychological assistance in Queensland; is settled in her school and her relationships; and importantly, the mother says that she attempted to return X on an aeroplane but she was unable to convince her to travel back to Tasmania.

8. I can have some sympathy for the mother’s position.  I certainly have sympathy for the father’s position.  We have a child who has been involved in these courts and has been the subject of orders as recently as a year ago.  I am not so naïve as to not understand that a child such as X may miss her mother by reason of the lack of frequency of contact with her.  I understand the rationale of some one-on-one time being ordered for X with her mother and I have no doubt that X loves her mother deeply and that those feelings are reciprocated and I expect, given the background of this matter that the issues were dealt with by consent as recently as a year ago, that the mother at least subjectively believes that she has X’s best interests at heart.

9. The fact remains, however, that as the father says that X’s status quo and her network of relationships, both within the family and the wider community, have been disturbed.  The mother’s plea, to this court that she has been unable to return X to Tasmania is something that I cannot accept at face value.  I can understand that difficulties will arise and they arise daily with children who travel to non-primary care of parents during the thrills and fun of the school holidays and they are presented the difficulty to return.  It is not a situation that is uncommon in this court.

10. The application before me is an interim hearing and by its very nature, I am asked to make a determination in respect of X’s best interests, but to do so without a full testing of the evidence and the competing proposals and assertions by each of the parties.  Nevertheless, and despite the limitations of a truncated hearing which proceeds simply on the face of the documents, I am still mandated to make orders so far as I can which have X’s best interests as my paramount consideration.

11. In determining X’s best interests, I am to reference the parties’ proposals and the probative evidence to the considerations under section 60CC(2) and (3) of the Family Law Act. The relevant matters that I have before me today, in my view, are that the orders from 2015 establishing a form of stability, or as lawyers would say, a status quo for a child whose need for stability is disturbed by those proceedings and where she would benefit from some form of certainty, order and routine in her day-to-day life.

12. I am satisfied on the material before me that X has established successful and meaningful relationships with both her parents, and if I can extend that consideration, I assume with her mother, her step-mother and her siblings in both family units. 

13. The mother says that X has expressed a preference and a wish to remain in Queensland.  I am unable to place any great weight on the wishes or views of a child with some developmental difficulties within a scenario where she has visited her mother on a one-on-one basis.  There are simply too many untested factors as X’s which, in my view, could serve to impact on the rationality of her views.

14. The other matter that the mother raises in a broad sense is the capacity of the father within his family unit to attend to X’s needs.  The mother alludes to some difficulties in that unit with the step-mother.  As counsel put to me in her submissions this is not an unusual situation.  If those issues degenerate into protective issues for X, then it is something that this court can and will address.  However, in my view, on the state of the evidence having read the affidavits, I am not satisfied that any issues for X within her family unit in Tasmania have yet to degenerate to that stage. In any event, I have the corroborating evidence that as recently as 2015, the mother and the Independent Children's Lawyer were objectively content for X and her siblings to remain primarily within the father’s family unit.

15. To my mind, there remain issues that need to be dealt with and the mother’s concerns perhaps can be addressed more properly for her and for X and generally for those involved in this matter but with the benefit of all of the evidence being placed before the Court in an informed and considered fashion. Having considered the evidence and balancing that evidence, I am of the view that X’s interests are served by her, at least in the interim, returning to Tasmanian and to the status quo established by the orders of 2015. I will re-appoint the Independent Children's Lawyer and that should be Mr Lewis. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McGuire.

Date: 17 November 2016