Sheenan and Sheenan

[2007] FamCA 1226

FAMILY COURT OF AUSTRALIA

SHEENAN & SHEENAN [2007] FamCA 1226

FAMILY LAW - CHILDREN – Recovery order – concerns about children being embroiled in interim dispute – need for stability in the lives of the children – Section 60CC factors considered

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286; 36 Fam LR 422

APPLICANT: Mrs Sheenan

RESPONDENT: Mr Sheenan

FILE NUMBER: MLC 10568 of 2007

DATE DELIVERED: 11 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Teicher

SOLICITOR FOR THE APPLICANT: Hughes Watson Marks Kennedy

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the application filed 21 September 2007 is adjourned to 9.00am on 19 October 2007 before me.

2. That until 19 October 2007, the children L born … February 2000 and M born … September 2001 live with the wife.

3. That pursuant to s.67U of the Family Law Act 1975 (Cth) a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the children, L born … February 2000 and M born … September 2001 and to deliver the said children to the wife forthwith, she being the person entitled to residence of the said children pursuant to orders made in the Family Court at Melbourne on this day.

4. That the costs of the wife of this day are reserved.

5. That pursuant to s.65DA(2) and s.62B, 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.

6. That the wife forthwith serve the husband with a copy of these reasons for judgment by post care of:

   (a)         C, Vic; and

   (b)         B, NSW.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10568 of 2007

MRS SHEENAN

Applicant

And

MR SHEENAN  

Respondent

REASONS FOR JUDGMENT

1. This matter came to me in the Duty List on 8 October 2007 on an application to proceed in the absence of service upon the respondent husband. On that day, I had the opportunity only to read the affidavit of the wife which had been filed on 21 September 2007. It immediately became obvious that the wife had not filed the requisite certificate under s 60I of the Family Law Act 1975 (Cth) (“the Act”). With some difficulty and reservation, I accepted that having regard to the fact that there had been intervention order proceedings between the parties, this was an appropriate matter to waive the requirement to file the certificate. That is not to say however that when the matter is returned to court, I would not delay the litigation and order that the parties attend upon a family dispute resolution practitioner.

2. Having regard to the fact that time had elapsed since the filing of the application and more importantly, various events had occurred between the parties during which the children had been divided into two households, I was not comfortable about immediately making a recovery order and accordingly, I directed that the husband deliver the children to the court at 9.00am on 11 October and for the matter to be then heard by me.  I made directions about service on the husband.  A number of options were ordered including personal service and by letter addressed to the husband care of his mother in C.  I was advised that the children who had normally lived in Sydney were on holidays and had clearly been in Melbourne and presumably living with their paternal grandmother.  In addition, the parties had been involved in intervention order proceedings in the Sunshine Magistrates Court at which time, the husband was legally represented.  According to what I was advised, the husband’s solicitors were N & Co. In addition, I directed that the solicitor for the wife telephone the two telephone numbers provided to indicate that a failure to attend could amount to a breach of the orders. 

3. When the matter returned for hearing on Thursday 11 October 2007, I was provided with an affidavit sworn by an Articled Clerk in the employ of the solicitors for the wife.  That affidavit sets out the attempts that were made to contact the husband and I am satisfied that on face value, the documents have at least been brought to the attention of the husband’s family through the mail and that they were being uncooperative in respect of the telephone conversation.  In relation to the solicitors to whom I have just referred, the indication was made that they no longer act for the husband.  Sadly, they were not prepared to forward the documents on to any address that they knew notwithstanding I had not said that that was a requirement.

4. In this case, there are three children L born in February 2000 who is therefore seven years of age, M who was born in September 2001 and S who was born in September 2004 and is therefore three years of age. 

5. I stress at this stage that I have read only the evidence of the wife and that it is untested but I am perturbed about some of the behaviour in this case to the extent that I think it needs to be brought before the court quickly and for the situation to be settled as soon as possible for the sake of the children.

6. As I understand the untested evidence of the wife, the parties have lived primarily in Sydney and were involved in a business there.  The wife makes accusations about how she was treated by the husband and of concern, there is an allegation that the husband used drugs recreationally in the home.

7. The wife also asserts that the husband exercises discipline over the children so that they were unable to grow and develop normally yet certainly subsequent to separation, there seems to have been some form of sharing of them.

8. If the wife’s version is accepted, in September 2006 she was shot by the husband with a slug gun at a time when the husband was angry towards her and she was carrying M.  Nothing is said in the affidavit about what happened thereafter.  The affidavit then jumps to a period nine months later when at the end of June 2007 the wife came to Melbourne with the children during their school holidays.  She said the husband “did not have any problem with this”.  She moved in to stay at the home of her mother in northern Melbourne.  She said a week later the husband came to Melbourne.  Thereafter, there seems to have been some arrangement between the parties about sharing the children at various times.  The picture is unclear.

9. The wife refers to an incident on 4 July 2007 when the husband delivered her and two of the children to the home of the wife’s sister.  The other child L was staying with the maternal grandmother.  What occurred that night is also very unclear but at about 7.00pm, the parties had a telephone discussion during which the respondent husband was screaming and swearing at the wife and complaining about the fact that she was running late.  She alleges that he made a threat to her to the extent that if he had to come and pick her up, he was going to kill her and that she was “going to come home in the boot”.

10. This seems to be about the time that the parties separated.

11. The children were then taken back to Sydney by the husband without the knowledge of the wife and telephone conversations between the parties and extended family members seem to have been abusive.

12. By this stage it was the end of July and the wife had not seen the children for three weeks.  How that happened is not at all clear.  The wife said she knew nothing about what they were eating or whether they were even attending school.

13. At the end of July, the wife went to Sydney and collected the children from school and came back to Melbourne.  Only two of the children came back because the youngest child was presumably not in school.

14. Thereafter over the month of August, the children seem to have been the participants in a tug of war which involved the paternal grandmother and others.

15. Again, the two older children were taken back to Sydney.

16. The wife deposes that on 17 August 2007, she went to a nightclub in Melbourne and at about 4.00am the husband materialised and some altercation occurred as a result of which night club staff escorted the husband out of the club.  She said she saw her son M at that time and she spoke with him. According to the wife, there was then a discussion between the parties in which he said to her that they needed to sort out what was happening with the children but she ignored him. There followed a driving episode in which she alleged that the husband drove along side her, screaming at her and driving erratically. The child M was in the car with the husband. The wife arrived at the home of her parents and called the police but nothing is said about what happened thereafter.

17. The next day the wife was at a shopping centre with the three year old child S. The husband then materialised, grabbed S and ran out of the shop. The child M was present. An unseemly struggle occurred witnessed by the children and the police arrived.

18. The wife retrieved S and took him to her motor car. The husband would not let the wife leave. The police arrived and somehow managed to calm the situation to the extent that the wife took S. Sensibly the police officer made an application for an intervention order in the Sunshine Magistrates Court. The husband was present, represented and agreed to the order being made for six months.

19. In what I could only consider a bizarre twist, the application was made citing the wife and the three children as aggrieved family members but the order seems to be only directed towards the wife. At this point in time, the husband had some of the children but that did not seem to be a matter that attracted any attention.

20. In September, there was a telephone conversation between the husband and the wife in which she spoke to L and M. If the wife’s version is accepted, it was not pleasant.

21. The wife deposed that she feared the husband was turning the children against her.

22. There were two issues of some concern to me. The first that the children had lived primarily in Sydney and had been brought to Melbourne by the wife in circumstances that at least this stage, are unclear on the affidavit of the wife. The second is the obvious tug of war that is going on between the parties which involves the children and which must stop. For that reason, I ordered the husband to bring the children to Melbourne on the assumption that he was still in Melbourne but that does not seem to have been attractive to him.

23. It may very well be that when the other side of the story is heard, not only is the immediate parenting issue in need of determination but as part of it, where the children will live on an interim basis. I am not at all concerned about that at this stage but rather to get some stability in the lives of the children.

24. Even on an interim basis, a parenting order requires the Court to contemplate matters set out in Part VII of the Family Law Act 1975 (Cth). The starting point is that in every case, the Court must make an order which is in the best interests of the children. That is very difficult in this case without hearing from the husband however, as was pointed out in Goode & Goode[1], the question of the presumption of equal shared parental responsibility needs to be contemplated. In making a parenting order, a Court may ignore the presumption in an interim application if it would not be in the best interests of the child to make an order along those lines. That is clearly the situation here. On any view, the parties cannot work out what is to happen to the children and their unpleasant relationship is being played out in the lives of the children before their very eyes.

    [1] (2006) FLC 93-286 at paragraph 64; 36 Fam LR 422 at 439

25. Even so, one must look at the question of the matters set out in Section 60CC of the Family Law Act 1975 (Cth).

26. In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:

    Primary considerations

    (2)      The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Additional considerations

    (3)      Additional considerations are:

    (a)      any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

    (b)      the nature of the relationship of the child with:

    (i)     each of the child’s parents; and

    (ii)other persons (including any grandparent or other relative of the child);

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)the capacity of:

    (i)each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

    (h) if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)the likely impact any proposed parenting order under this Part will have on that right;

    (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    (j) any family violence involving the child or a member of the child’s family;

    (k) any family violence order that applies to the child or a member of the child’s family, if:

    (i)the order is a final order; or

    (ii)the making of the order was contested by a person;

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    (m)any other fact or circumstance that the court thinks is relevant.

27. Parliament chose to distinguish between primary and additional considerations and some explanation for that may be found in the explanatory memorandum at paragraph 49 where it was said that it was done to elevate the importance of the primary factors and to:

    better direct the court’s attention to the revised objects of Part VII of the Act.

28. Each of the factors is important but the focus should initially be on the primary considerations.

29. Parliament went on to add separate but equally important factors which again focus the Court’s attention on how parents have fulfilled their respective responsibilities in a serious and meaningful way.

30. I am unable to determine the question of whether these children as yet have a meaningful relationship with each of the parents and what benefits they derive from that however it is important in this case to protect the children from the ongoing dispute between the parties because of the physical and psychological harm which they are being subjected or exposed by virtue of the matter that I have referred to above even on the untested evidence.

31. I do not know what views the children hold in relation to the question of where they live even on an interim basis and I can only conclude that as the wife permitted the children to at least remain with the husband for some weeks without doing anything about that, she has some willingness to accept that the nature of the relationship between the children and the husband is acceptable notwithstanding her concern that the husband is turning the children against her. As I have pointed out, I have no confidence about how either party currently encouraging the ongoing relationship between the other parent and the children nor do I understand the effect on the children of the separation from the other parent.

32. I am obliged to take into account the capacity of each of the parents to provide for the needs of the children and the evidence does not make any indication at this stage of just what each parent is fulfilling nor how they would fulfil that in the future.

33. The provisions of Section 60CC(3)(i) indicate that I an obliged to take into account the attitude to the child and the responsibility of parenthood demonstrated by each of the parents. On what I have set out above, I am very concerned about M being present in a nightclub at 4:00am in the circumstances described by the wife. Just who was caring for M and the other children at that stage is still unclear.

34. There is clear family violence in this case which must be seen to have been acknowledged by the acceptance by the intervention order and that is unashamedly bad for the children.

35. I am not able to make any findings in respect of the provisions of Section 60CC(4) nor should I at this stage.

36. In the circumstances, it seems to me that the wife should have the primary responsibility for the care of the children at this stage until the matter can be brought before the Court to determine just where the children will live until a proper hearing can be undertaken. For those reasons I propose to make an order that the children live with the wife and that as the husband seems not to have decided to participate in the proceedings that I set up some days ago, I intend that a recovery order issue and that the matter quickly return to Court for determination. 

I certify that the preceding twenty-nine (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  15 October 2007