Sanford and Macbay

[2018] FCCA 1298

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANFORD & MACBAY [2018] FCCA 1298

Catchwords:
FAMILY LAW – Parenting – allegations of family violence – mother will not return to Darwin due to safety concerns – orders made for the matter to be transferred to Melbourne.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS SANFORD

Respondent: MR MACBAY

File Number: DNC 432 of 2017

Judgment of: Judge Young

Hearing date: 30 April 2018

Date of Last Submission: 30 April 2018

Delivered at: Darwin

Delivered on: 30 April 2018

REPRESENTATION

Counsel for the Applicant: Ms Srinivas

Solicitors for the Applicant: Northern Territory Legal Aid

Counsel for the Respondent: Ms Gray

Solicitors for the Respondent: Grays Legal NT

ORDERS

1. That the matter be transferred to the Federal Circuit Court, Melbourne and listed before Judge McGuire on 5 June 2018 at 9.45am for further consideration.

2. That the trial listed on 17 October 2018 at Darwin be vacated.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 432 of 2017

MS SANFORD

Applicant

And

MR MACBAY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amendable to being read.

2. This is a parenting matter concerning a child, [X], who has just turned six.  The mother unilaterally relocated to Melbourne, as far as I can see, with [X]. On 7 February 2018 I made orders for a family report and orders setting this matter down for trial on 17 October.  The mother has filed a voluminous amount of material deposing as to her fear of violence from the father.  Much of the material relates to the father’s siblings.  It is apparent from that material that some of the father’s siblings have been involved over the years, at least, in serious criminal offences, including crimes of violence. 

3. On 7 February among the orders I made was an order that the solicitor for the mother file and serve an affidavit setting out the extent of inquiries made with the Court and Court Services to develop a security plan to ensure the mother’s safety should she return to Darwin for the purposes of the preparation of the family report and consequent observation of the child with the father. 

4. The affidavit filed on behalf of the mother and sworn by the mother’s solicitor deposes to various attempts to deal with support services which could, it was thought, provide secure accommodation in the event of the mother returning to Darwin with the child. Some of it, in my view, looks simply inflated, such as a request about a police escort to and from the airport.  I am not surprised that the police refused.  There were inquiries made of the Witness Assistance Office in the Northern Territory who said, not surprisingly, that the assistance they provided was only in relation to criminal matters. There was an inquiry made to (omitted crisis accommodation) who have said that they were not able to provide accommodation for a child. Inquiries were made at the (omitted charity organisation). They advised they can provide safe house accommodation but there was no guarantee that they would be able to provide it on a particular date.  There was also no guarantee of any security personnel. 

5. The affidavit, somewhat disappointingly, did not address the very matter that was the subject of the order.  That is the extent of inquiries made with the Court and Court Services to develop a security plan to ensure the mother’s safety.  I would have expected there would have been correspondence with the Marshal of the Court about that issue.  There is none.  That was the very matter that I had in mind when I made the order.  I have real reservations about the position taken by the mother in relation to this matter, that is, that she cannot under any circumstances return to Darwin for the preparation of the family report and an observation. 

6. Nevertheless, I have the impression that whatever orders I make are likely to be ineffective in ensuring that the mother returns to Darwin.  Very reluctantly, I propose to make an order for transfer of this matter to Melbourne.  That is a great shame because trial dates were set down for October and there will be a very long delay in getting trial in Melbourne. I have only dealt with the issue on the papers. There has been no cross-examination.  Given that, I do not accept, necessarily, that the mother’s position is a reasonable one and I am not even satisfied that her attitude is genuine.  However, given that short of a trial on the issue, I am unable to form any view about those matters I think I have to take her fears as genuine and I am satisfied, as I have said, that there is at least some basis for her concern. That is not to say that I consider her concerns to be well-founded.  I do not know.  I think, in those circumstances, the Court is really put in the position of being forced to transfer a matter even though I am not satisfied that it is in the best interests of the child involved to do that. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 22 May 2018