RADCLIFFE & MARLOW

[2016] FamCA 105

FAMILY COURT OF AUSTRALIA

RADCLIFFE & MARLOW [2016] FamCA 105

FAMILY LAW – PRACTICE & PROCEDURE – Where final parenting orders were made in December 2014 providing for the child to live with the mother and to communicate and spend substantial and significant time with the father – Where the mother’s application to vary those final orders was heard in the absence of the father, on an undefended basis

FAMILY LAW – CHILDREN – Where there was an altercation between the father and maternal grandmother which resulted in the father retaining the child in his care – Where the mother filed an urgent application for a recovery order – Where the father subsequently returned the child to the mother’s care –  Where the child has not seen the father since May 2015 – Discrete issues – Where further orders made in addition to the orders made in December 2014 – Where the father has not filed any material in the current proceedings – Where it is appropriate to allow a further period of time for the father to advise the mother as to whether or not he intends to resume spending time with the child – Where if the father fails to advise the mother, or advises her that he has indeed decided to cease spending time with the child, then the appropriate course is for all current parenting orders to be discharged and without further reference to the parties, new orders to become operative, confirming the mother with sole parental responsibility and residence, and for the father to spend time and communicate with the child as agreed between the parties in writing

Radcliffe & Marlow [2014] FamCA 1173

APPLICANT: Ms Radcliffe

RESPONDENT: Mr Marlow

FILE NUMBER: SYC 439 of 2013

DATE DELIVERED: 26 February 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 24 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders Further to Orders of 23 December 2014

1. Order 4.3 of the Orders of 23 December 2014 is discharged.

2. The mother is restrained from authorising and permitting the maternal grandmother to collect and/or deliver the child at changeovers.

3. Subject to Order 2 each party may nominate third parties to effect changeovers.

4. Each party shall advise the other in advance (by telephone or SMS text) of the name of any proposed nominee.

5. The father shall, in advance of each period of time which the child spends with him, advise the mother of the address at which the child will be spending such time.

6. That the Amended Initiating Application of the mother filed 7 April 2015 is otherwise dismissed.

It Is Ordered

1. That the father shall on or before 23 March 2016 advise the mother or her solicitor in writing (which includes SMS text and email) whether or not he intends to resume spending time with the child pursuant to the Orders of

   
   

   23 December 2014 as varied by Orders 1 to 5 inclusive made 26 February 2016.

2. That in the event that the father fails to comply with Order 7 hereof, or complies by advising that he does not intend to resume spending time with the child, then the following Orders shall become operative:

   8.1

   That all prior parenting Orders made in this Court (including Orders

   
   

   1 to 5 made today) in the Family Court of Western Australia in relation to the child L born … 2006 are discharged.

   8.2That the mother shall have parental responsibility in respect of long term issues for the child (including but not limited to education at school and medical treatment) other than in respect to connection to Aboriginal culture for which the father shall have parental responsibility.

   8.3That the child shall live with the mother.

   8.4That the father shall spend time and communicate with the child as agreed between the parties in writing.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 439 of 2013

Ms Radcliffe

Applicant

And

Mr Marlow

Respondent

REASONS FOR JUDGMENT

introduction

1. This is an application for variation of parenting orders in relation to one child, a girl aged almost 10 years.

2. The applicant is the mother, aged 34.  The respondent is the father, aged 43.

3. There were final parenting Orders made on 23 December 2014 after a three day hearing before me.  Those Orders provided for the child to live with the mother and to communicate and spend substantial and significant time with the father.

4. There was also an Order for the mother to have parental responsibility for all long term issues, other than in relation to connection to aboriginal culture, for which the father would take responsibility.

5. The application to vary was ultimately heard, undefended by the father, on

   
   

   24 November 2015.

Evidence

1. The documents relied on in respect of the application were as follows: 

   (a)Initiating Application of the mother filed 10/02/2015;

   (b)Affidavit of the mother filed 10/02/2015;

   (c)Affidavit of the mother’s solicitor filed 10/02/2015;

   (d)Amended Initiating Application of the mother filed 07/04/2015;

   (e)Affidavit of the mother’s solicitor filed 20/05/2015;

   (f)Affidavit of the mother filed 20/08/2015;

   (g)Affidavit of the mother’s solicitor filed in Court on 24/11/2015;

   (h)Minute of Order of the mother filed on 24/11/2015; and

   (i)Child Inclusive Conference Memorandum dated 22/06/2015.

Short History of Relevant Events

1. The father began spending time with the child immediately after the December 2014 Orders were made.  He also spent additional time over the 2014/2015 Christmas holiday period by arrangement between the parties.

2. The mother came to regret agreeing to additional time over the holidays and also to having engaged in friendship with the father and conversations in relation to matters other than arrangements for the child. The mother resolved to revert to strict compliance with the Orders.[1]

   [1] Affidavit of the mother filed 10/02/2015, par 30

3. On 5 February 2015 the mother told the father of her decision.  The father reacted with criticism and disappointment attributing the change in the mother’s attitude to negative influence by the maternal family.

4. On 7 February 2015 the child went to spend the weekend with the father.  By prior agreement, and at the request of the father, time was starting at 12.30 pm on Saturday instead of Friday evening. Unfortunately the mother arranged for the maternal grandmother to effect the changeover without letting the father know in advance.  It was not an insignificant change.

5. The maternal grandmother has a poor opinion of the father.[2] She had always thought the father unsuitable as a partner for the mother from the time the parties met and commenced living together in late 2001.

   [2]Radcliffe & Marlow [2014] FamCA 1173, pars 71 and 77

6. I found in the final proceedings that the maternal grandmother did not step back from her negative view at any time.  It was the mother changing her own attitude to the father which led to reconciliation between mother and daughter after a long rift.

7. For his part, the father holds the maternal grandmother responsible for the early conflict in the parties’ relationship.

8. The mother referred in her affidavit, somewhat defensively, to the fact that the December 2014 Orders do not state specifically that delegates for the parents can effect changeovers but that in the Reasons for Judgment there is a reference to the maternal grandparents being able to assist with changeovers.[3] 

   [3] Affidavit of the mother filed 10/02/2015, par 29

9. This reference is generally true, but not quite accurate:[4]

   I expect that the extended maternal family will be a steady source of love and support for the child.  It may be in the years to come, that the maternal grandparents, or one of them, can assist in changeovers, but if not, for all non-school changeovers exchange between the parents in the mother’s local area, is the best way for the child.  Orders are made accordingly.

   [4]Radcliffe & Marlow [2014] FamCA 1173, par 148

10. After such a bout of conflict between herself and the father, the decisions taken by the mother to ask the maternal grandmother to effect the changeover and also to not tell the father that the maternal grandmother would be delivering the child were unwise, given the history in this matter.  In a way which must have been predictable to the mother, the father reacted negatively to the maternal grandmother delivering the child.

11. Early on Sunday morning, on 8 February 2015, the father sent a text to the mother referring to his view that the maternal grandmother had caused conflict in the past and stated:[5]

    … don’t send ur mother again, or we will be back in court again I don’t want to talk to u about anything ill keep my distance but if ur mum ever turns up again I will take [the child] to the Police station and u can collect [the child] from there (sic).

    [5] Affidavit of the mother filed 10/02/2015, par 28

12. Nevertheless, that afternoon, the mother arranged for the maternal grandmother to collect the child at the nominated changeover point.  She again did not advise the father that she intended to do so.  The outcome was a poor one for the child.  The father refused to hand the child to the maternal grandmother.  There was a clash between them and the child was caught in it. 

13. That clash was subsequently described by the Family Consultant, who saw the parties later in the year for a Child Inclusive Conference, as follows:[6]

    … The father and the child agree that the father and the child were walking near Bunnings on the Central Coast when the maternal grandmother approached them.  The father states that he did not want to handover the child to the maternal grandmother as the mother was not present and they were not in the required handover place (Coles at [Town X]). The child stated that she wished to go with the maternal grandmother. It seems that the father and the maternal grandmother have then pulled the subject child between them and the child has received scratches and bruises from this encounter. The father provided a copy of the discharge summary from hospital which supports the physical bruising on the child. The father alleges that the [maternal] grandmother caused the bruising and the mother alleges that the father caused the bruising.  Regardless, a child was caught physically between two waring adults.

    [6] Child Inclusive Memorandum dated 22/06/2015, page 2

14. The father took the child to Town W Hospital that eventing. The Discharge Referral diagnosed “contusion of forearm”.  She had “2-3 linear bruises on her forearm measuring approximately 3-4cm, 2cm and 1cm. These marks are consistent with finger marks”.[7]

    [7] Exhibit MFI1 (page 2)

15. The child was not returned to the mother that night.  She was at the hospital having her injuries assessed.  The mother thereafter attempted to make contact with the father by telephone.

16. On 9 February 2015 the mother made a report to Police that the child had not been returned to her care.  Shortly afterwards the Police contacted the mother and let her know that a report had been received that the child had been bruised as a result of the actions of maternal grandmother unsuccessfully trying to effect collection of the child.

17. By midday on 9 February 2015 the child was still not present at school.

18. The mother instructed her solicitor to prepare an application for a Recovery Order. That application was filed urgently in the Federal Circuit Court and was given a return date the following day.

19. At 4.00 pm on 9 February 2015 the father met the mother by arrangement at the changeover point and returned the child.  She has remained living with the mother since.

20. On the following day the mother’s application was given a return date in

    
    

    March 2015.  The mother pressed on with those proceedings which were transferred on the return date to this Court.

21. On 7 April 2015 the mother filed an Amended Initiating Application seeking further orders, in particular, the right to delegate responsibility to nominees for changeovers and a raft of minor variations to the final Orders.

22. Contact and telephone calls between the father and the child continued.

23. On Wednesday 29 April 2015 the father failed to collect the child from afterschool care for the Wednesday afternoon contact period.  The mother was waiting at the changeover point at 6.00 pm when she was notified by the school that the child, who had become quite distressed, was waiting for collection. 

24. There was correspondence between the mother’s solicitor and the father; the father asserting that he had told the child of his inability to attend.  Whether or not he did, it was not good enough.  The father should have corresponded with the mother.

25. The child spent the following weekend with the father.

26. On the following Wednesday the father again failed to collect the child for the Wednesday afternoon period of time.

27. On 7 May 2015 the mother caused her solicitors to write to the father, suspending the operation of Wednesday afternoon time, on the basis of distress caused to the child on two consecutive occasions. It was a reasonable position to take.

28. At that point it was raised with the father that correspondence had been returned from his last known address.  The father declined to provide details of his new address.

29. On 22 June 2015 there was a Child Inclusive Conference.  The agreement reached in that conference were as follows:[8]

    (a)That the Wednesday afternoon time with the father cease.

    (b)That it is important for the father and the subject child to continue to spend alternative weekends with each other.

    (c)That [the child] continue to attend After School Care on Wednesdays and the father continue to pay for this.

    (d)The mother is willing for the subject child to spend extra time with the father in the June/July holidays (if the father provides an address).

    [8] Child Inclusive Memorandum dated 22/06/2015, page 1

30. The Family Consultant recommended that:[9]

    (a)There may need to be a judicial decision regarding the father providing his address;

    (b)The child should continue to spend alternate weekends with the father;

    (c)Handovers might move to a more child friendly venue; and

    (d)The maternal grandmother not be involved in further handovers.

    [9] Child Inclusive Memorandum dated 22/06/2015, page 3

31. On 10 August 2015, Orders and directions were made for a short hearing in respect of the matters raised. The mother filed an affidavit; the father did not file a Response or any affidavit material.

32. On 27 October 2015, the matter came back before me. There was no appearance by or on behalf of the father.  In those circumstances the mother proposed that she prepare and serve a Minute of Final Orders given the father’s failure to participate in the proceedings with evidence or appearance.

33. An undefended hearing was set down for 24 November 2015 at 4.00 pm.  On that date the mother and her solicitor were present at Court. The father was not present.  He had attended the counter of the Newcastle Registry at 2.45 pm advising that he had been assaulted on the train. 

34. The father advised that he required medical attention as he had a broken knuckle and had a sore hip and back.  He advised that he may be bleeding internally and could bleed to death if he stayed to defend himself for the Court proceedings.  He also stated that he was in shock.

35. The perpetrator of the assault on him was said to have been arrested by Police and the father was to attend the Broadmeadow Train Station Police Office the following Wednesday to make a statement.  The father was advised by Registry staff to fax a letter from the doctor at the hospital to the Court.

36. In those circumstances the matter proceeded on this basis:

    (a)The father was granted an extension of time to comply with Orders made on 10 August 2015 until Tuesday 15 December 2015.

    (b)In the event that the father did file those documents, a Response, affidavit and medical evidence, then the matter would be relisted.

    (c)Otherwise, it would be determined on the basis of the mother’s material.

37. The father did arrange for a Discharge Referral to be faxed to the Court by the hospital later that day. It was stamped 16:47 pm (although signed and dated 17:44 pm).[10]  The father filed no further material.

    [10] Discharge Referral on File

38. The Discharge Referral disclosed a current address. The father apparently made a request that the address be kept confidential. Those arrangements were made.

Conclusion

1. It is a difficult situation.   The child enjoys time with the father.  She lived with him in Western Australia for six years before coming into the mother’s care, three years ago, in February 2013. This change was largely, although not entirely, as a result of the failure of the father to ensure attendance of the child at school in Western Australia.

2. The Orders made in December 2014 reflect the strength of the relationship between the child and the father and her strong wish to maintain a regular relationship with him.

3. Within two months of those Orders being made, arrangements broke down in conflict. The mother made an ill-considered decision to send the maternal grandmother along, without notice, at the beginning and end of the February contact period in 2015. The mother had again drawn close to the father, allowed additional periods of time which the child enjoyed, and then retreated.

4. To ask her parents to assist her was understandable, but to do so without notice to the father, and then over his expressed opposition, was to ignore the likely outcome which was exposure of the child to conflict.  Indeed the child was injured in the conflict between the father and the maternal grandmother as they apparently actually fought over the child.

5. In accordance with the recommendation of the Family Consultant, and on the basis of the obvious adverse impact on the child of being caught in that conflict, I consider it appropriate to make some further Orders restraining the mother from authorising and permitting the maternal grandmother to be involved in changeovers and requiring each of the parties to provide in advance the name of nominees for changeovers, with those third parties to be people known to the child.

6. It is also clear that the Wednesday afternoon visits are no longer suitable.  The parties having agreed that they should cease in June 2015, an Order will be made accordingly.

7. However, a broader difficulty remains.  The father has not seen the child since May 2015, nor had telephone contact with her since July 2015.  Because he has not filed any material or participated in the final proceedings, I am not in a position to know whether he has taken a decision to cease all contact with the child or not. 

8. I therefore consider it appropriate to allow a further period of time for the father to advise the mother as to whether or not he intends to resume spending time with the child pursuant to the Orders of December 2014 together with the additional Orders made in relation to changeover arrangements and Wednesday afternoon.

9. If the father fails to advise the mother, or advises her that he has indeed decided to cease spending time with the child, then the appropriate course is for all current parenting Orders to be discharged and without further reference to the parties, new Orders to become operative, confirming the mother with sole parental responsibility and residence, and for the father to spend time and communicate with the child as agreed between the parties in writing.

10. Orders are made accordingly.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 26 February 2016.

Associate: 

Date:  26 February 2016