Shelley and Schmidt - [2011] FMCAfam 433

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHELLEY & SCHMIDT

[2011] FMCAfam 433

FAMILY LAW – Interim arrangements for care of child aged 7 – exposure to family violence – unilateral action of one parent – assessment of risk – best interests.

Family Law Act 1975 (Cth), s.60CC

Applicant:

MR SHELLEY

Respondent:

MS SCHMIDT

File Number:

ADC 1105 of 2011

Judgment of:

Brown FM

Hearing date:

19 April 2011

Date of Last Submission:

19 April 2011

Delivered at:

Adelaide

Delivered on:

19 April 2011

REPRESENTATION

Counsel for the Applicant:

Ms De Corso

Solicitors for the Applicant:

Duty Solicitor

Counsel for the Respondent:

The mother in person

ORDERS

The mother book and pay for tickets for herself and the child [Z] on a flight departing from Adelaide to Brisbane during daylight hours on 28 April 2011.
The mother advise the father in writing at his email address of the details of the flight not later than 6:00pm on 21 April 2011.
The father deliver the child to the mother at the Adelaide Airport at a location at the airport to be agreed between the parties at the airport or at such other location away from the airport as agreed between the parties, and failing agreement at the Qantas check in desk on the ground floor two hours prior to the flight departure pursuant to order 1 hereof.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The child [Z] born [in] 2003 live with the mother.
The father have telephone communication with the child each Wednesday and Sunday at 6:30pm (Australian Central time) with the father to telephone the child on the mother’s landline [number omitted] and the mother to ensure the child is available to take the father’s call and to speak to the father from a quiet and uninterrupted setting.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
Pursuant to section 68B of the Family Law Act 1975 an injunction is made and Mr B is restrained from being on the premises situated at Property T, Queensland other than to collect and return the child [V] born [in] 2006 as the mother and he agree.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 23 May 2011 at 2:15pm, to discuss the care, welfare and development of the child [Z] born [in] 2003 and to discuss and any ongoing arrangements for [Z], particularly for the child to spend time with each of his parents, in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance NOTING the mother is given leave to appear by telephone provided she give the court a telephone number (not a mobile) that she can be contacted on 48 hours prior to the conference.
The evidence of each of these parties be transcribed together with the reasons for judgment and provided to the parties.
Further consideration of the matter is adjourned to 9 June 2011 at 9:30am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1105 of 2011

MR SHELLEY

Applicant

And

MS SCHMIDT

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the interim hearing. At the time, I ordered the reasons to be transcribed. These are those reasons.
Today, the matter of Shelley & Schmidt is listed before me, for an interim hearing. The applicant in the proceedings is Mr Shelley. The respondent is Ms Schmidt. The parties are the parents of [Z], who was born [in] 2003.
Mr Shelley commenced these proceedings on 25 March 2011. He seeks both interim and final orders that would see [Z] living with him in Adelaide. He also asked that his application be heard urgently.
Ms Schmidt, who lives in [omitted] in Queensland, responded to this application on 18 April 2011. She seeks orders that would see [Z] being returned to her care in Brisbane.
Mr Shelley has prepared his own application. He has filed a notice of child abuse and in support of his application has prepared a fairly short affidavit. I am not critical of him for that.
Ms Schmidt has appeared on her own behalf today, by telephone, from her home in Queensland. She has prepared some affidavit material on her behalf, but it is my understanding that she had some professional assistance with that material.
Mr Shelley has had assistance from Ms De Corso, who is the duty solicitor here in the court in Adelaide. As I say, Ms Schmidt has appeared from her home in Queensland.
This is an interim hearing. Usually, interim hearings do not allow the court to take evidence from the parties concerned. Invariably, interim hearings occur against a background of urgency and disputation, and so it is with this case.
As I say, usually there is not opportunity for the court to hear evidence from the parties themselves at the interim stage. But given the nature of this case, particularly its controversy and complexity, and also because Mr Shelley had raised significant issues to do with [Z]’s well-being, but his affidavit material was brief, I decided that I would take some evidence from each of the parties.
That was difficult, because Ms Schmidt is in Queensland and is appearing on the telephone. It is now about 4.05 pm. The case began at 2.15 pm. On my rough estimations, I have spent somewhere in excess of an hour and a half hearing from each of the parties.
Because these are proceedings relating to a child, the provisions of Division 12A of the Family Law Act 1975 apply. As such, I am empowered to conduct the proceedings in a way that is as unadversarial as possible.
In addition, as issues of family violence have been raised, I am empowered to, and directed to, embark upon an inquiry in respect of such allegations as soon as is practicable. With those concepts in mind, I decided to hear evidence from each of the parties.
When all is said and done, there are few issues in dispute between the parties, and although they may disagree about many things, they have one thing in common, and that is that they share a love of [Z], and both wish the best for him.
By way of background, the parties agree that they were involved with one another from some time in either 2000 or 2001, until they separated in early 2005. The parties’ relationship took place both in northern New South Wales and in Brisbane, but primarily, however, they lived together in Lismore. They separated in early 2005. The impression I have is that that separation was not as acrimonious as many separations are.
At any event, it is common ground that, after the parties separated,

Mr Shelley was able to continue to have a great deal of involvement in [Z]’s care. Shortly after the parties separated Ms Schmidt became involved with a person, Mr B, whom she has subsequently married.
Ms Schmidt and Mr B have another child together. He is [V], who was born [in] 2006. [Birthday details omitted.] It is her position that [Z] and [V] share a close relationship.
At any event, as I say, the parties were able to arrange things so that [Z] saw his father regularly. In 2005 the mother commenced some proceedings in the Local Court, in [omitted], regarding formalising these arrangements for [Z]’s care.
I have a minute of the relevant consent order, which is dated

11 November 2005, though the orders themselves seem to have been made at a later stage, in early February 2006. Pursuant to the orders, the parties agreed that [Z] would live mainly with his mother, but see his father on two days each week in the afternoon, from 4.00 pm until 7.00 pm, and on alternate weekends, from 4.00 pm on Friday until

5.00 pm the following Sunday.
Some other orders were made dealing with [Z] seeing his father on special occasions and seeing his mother on Mother’s Day and so on and so forth. It was also ordered that Mr Shelley agree that he would not take [Z] to South Australia, until he had reached the age of three years.
It seems to be the position that, although Mr Shelley was born in New South Wales, he has connections here in South Australia, and I will come to those connections in a moment.
At any rate, there was no dispute between the parties that, after they had separated, Mr Shelley saw [Z] regularly. It seems to be the case that the parties, independently of one another, moved to live in the Brisbane area.
Mr Shelley has also repartnered. His partner is Ms T. They have been involved together since July of 2005. They have three children together – [W], born [in] 2006; [X], born [in] 2008; and [Y], who was born [in] 2009. Again, when the parties moved to Brisbane, Mr Shelley was able to see [Z] regularly, pursuant to the [omitted] Court order, which was not formally changed.
Things changed radically, for Mr Shelley, in early 2009. It was at this stage that, in conjunction with Ms T, he decided that he would move to Adelaide. They had good reasons for moving. Ms T has many family members in Adelaide. It also seems, unfortunately, that Mr Shelley’s work in Brisbane was closing down. He is a [omitted], I think, by profession.
Anyway, he, in conjunction with Ms T, decided to come to South Australia to live and, no doubt, as he told me in his evidence, that was heartbreakingly difficult for him to do, because of [Z]. However, neither party saw fit to alter the orders that had been made by the Local Court at [omitted], and they remained on foot.
Obviously, apart from the reference to Mr Shelley not taking [Z] out of Queensland, until [Z] reached the age of three years, the orders did not deal with this very significant change of circumstances.
Thereafter it is Mr Shelley’s evidence that he regularly flew up to Brisbane to see [Z] and spend time with him, once he (Mr Shelley) had moved to Adelaide. He fully concedes that Ms Schmidt has been supportive of him spending time with [Z]. He also says that he has had no concerns about Ms Schmidt’s parenting of [Z] in this period, and no specific concerns about Mr B.
However, it seems to be the case that tensions arose in the parties’ relationship with one another, over the issue of whether [Z] should come to see his father in Adelaide, particularly there seems to be some controversy as to whether [Z] was old enough to travel on his own between Brisbane and Adelaide. However, Mr Shelley did not see fit to bring proceedings to resolve that issue because he thought it would be sorted out in time.
Mr Shelley spent time with [Z] in September 2010. Unfortunately, he was not able to make arrangements, so far as the Christmas period of 2010 was concerned. He told me that, in September 2010, [Z] seemed to be okay. [Z] did allegedly inquire about the possibility of living with his father. Mr Shelley concedes that [Z] loves his mother. He also concedes that [Z] has a close relationship with his younger half‑brother, [V].
The father has some criticisms that telephone contact was not as regular as it might have been, but he did acknowledge that he was able to speak to [Z] regularly. In addition he has some criticisms of the mother for changing [Z]’s place of enrolment from [W] State School to [E] State School.
The background to these proceedings coming urgently and controversially into court, concerns something that happened on 18 March 2011, at Ms Schmidt’s home in [omitted]. She concedes that she was seriously assaulted by Mr B on this occasion.
Mr Shelley knows about this incident because Ms Schmidt telephoned him about it, shortly after it happened. I think that is significant, because it indicates that Ms Schmidt did not attempt to conceal what was, undoubtedly, a very significant episode, so far as [Z] was concerned.
It is Ms Schmidt’s evidence, which she has given subject to an affirmation to tell the truth, that she and Mr B were separated for much of 2010. Mr B is apparently employed as a [omitted]. He has been working away from home both in central Queensland and, more recently, on the north side of Brisbane.
Mr B and Ms Schmidt are the joint owners of the property where the mother lives, in [omitted]. It is the mother’s case that Mr B had been living away from that property for much of 2010, but did spend time at the property around the middle of 2010. It is her evidence that she and Mr B finally separated in February 2010.
It is her case, and the evidence that she has given today, that on 18 March, in the afternoon, Mr B came to her home with the intention of taking [V] to cricket. Mr B was drunk. There was an altercation between the parties, occasioned by Ms Schmidt telling Mr B to leave, and that he would not be permitted to take the child to cricket.
The altercation arose when Mr B would not do as he was told. It seems to have been a serious altercation. Ms Schmidt was thrown to the ground. She had an injury to her forehead that seems to have resulted in a wound, which bled. She was also kicked by Mr B, when she was on the ground. She has said that she was bruised on her left upper thigh.
So, undoubtedly, it was both an unpleasant and serious assault. I do not know how big Mr B is, but he, clearly, had a physical advantage over Ms Schmidt. This serious assault is, of course, made more serious by the fact that Mr B was under the influence of alcohol and it occurred in a domestic situation, where Ms Schmidt is entitled to feel safe.
Significantly in this case, the two children, particularly [Z], were home. They would have heard their mother screaming. They would have heard yelling from Mr B. They, at the very least, would have been exposed to the sounds of a serious assault going on. Almost certainly, they would have seen the injuries to their mother.
These events would have caused shock and fear to them; [Z] would have been very upset indeed. He would have seen the person he loves being hurt by a person whom he had previously trusted, perhaps. He would have felt powerless. He would have been placed in the position, whilst a child, of wanting to protect his mother, of wanting this assault to stop, but, of course, not being able to intervene. I, of course, have to take such episodes of family violence very seriously indeed.
Ms Schmidt rang not only Mr Shelley, but also the police. She also rang Mr Shelley’s brother, Mr S, who apparently lives not far away from her, in Brisbane. So I do not think it can be said that Ms Schmidt tried to keep this episode a secret from Mr Shelley. I do not think it can be said that she tried to deceive Mr Shelley in any way.
It also seems to me that, by calling the police, she did what was appropriate. The police took some time to come. It is Ms Schmidt’s evidence that Mr B had left by the time the police arrived. Mr S came first, and the mother made arrangements with him for both [Z] and [V] to be taken away to his home.
Again, I think, that was appropriate behaviour on the mother’s part. It seems that Mr S tried to get Mr B to leave, but he was unable to get him to leave. But Mr B did eventually leave. The serious confrontation ended.
Ms Schmidt made a complaint to police. She indicated that she wished Mr B charged with assaulting her. She arranged to see a medical practitioner in order to have her injuries documented.
The Police took steps to obtain a domestic violence restraining order against Mr B. Such an order was granted, with the consent of Mr B, on 22 March, by the [omitted] Magistrates Court. As a result of the order, Mr B is restrained from threatening or assaulting or harassing

Ms Schmidt. I have not been provided with an exact copy of that order.
Given these circumstances, particularly what his brother had told him, Mr Shelley wasted no time coming from Adelaide to Brisbane. He must have left Adelaide that night and arrived in Brisbane in the early hours of 19 March.
He went to his brother’s house and saw [Z] and [V]. He says that [Z] was very upset, and I do not doubt that that was the case. Later, after she had been to see a medical practitioner, Ms Schmidt arrived at the house. There was some controversy about what would happen next. Mr B also arrived.
That, perhaps, might not have been a good idea, but he was there, it seems, and there was some discussion. Mr Shelley wished to take both [Z] and [V] to Adelaide with him. Clearly, given his status, so far as [V] is concerned, there was likely to be controversy with Mr B about that.
Anyway, the mother left with the two children and went to her home, and, thereafter, there were some discussions between all concerned. The police were also involved.
What the police told Ms Schmidt, on the one hand, and Mr Shelley, on the other, is controversial. Mr Shelley’s impression was that the police gave him the indication that he should take [Z] with him to Adelaide. The mother concedes that she was upset and worried. She wanted to leave the Property T property. Accordingly, she decided, with the assistance of her sister, to go to Hamilton Island for a period of time, about a week, with [V], to regain her composure.
Against that background – and Mr Shelley concedes that it was so – it was agreed that [Z] would go to Adelaide, with his father, for about a week. In this period of about a week, the mother’s understanding was that whilst she was away, Mr B would go to her home in Property T, and remove his possessions, and she would return there later, after her holiday.
The father’s position is, now, that he is not prepared to return [Z] to the mother. He has brought these proceedings. It is his evidence that [Z] has told him that he has been exposed to arguments between Mr B and his mother in the past. The mother disputes that. She says that that simply cannot be possible, because Mr B has not been in her household for much of last year.
Ms Schmidt also concedes that she has had some interactions with

Mr B, since the incident on 18 March. She says she has seen Mr B at the local park, at the shops, and at the Property T property, because arrangements have been made for [V] to see him, and [V] has wanted to see his father. She refutes any suggestion that she is in a relationship with Mr B that is ongoing.
She says that she has acted appropriately, in regards to this episode of family violence. She will not be a party to Mr B breaching the domestic violence order and will immediately involve the police, if he does breach the order. It is her case that she is not a person who will go back into an abusive and violent relationship with Mr B, and so re‑expose [Z] to further episodes of violence between Mr B and her.
Mr Shelley is concerned about this whole situation – I am not critical of him for that – particularly, he is concerned about what [Z] has told him more recently. Ms Schmidt’s position is that she is fearful that, either consciously or unconsciously, Mr Shelley and Ms T have seized on this incidence as a means of disrupting her previously strong and happy relationship with [Z] to support their own emotional needs.
In deciding this case, I have to balance the matters that are set out in section 60CC of the Family Law Act 1975 to reach the outcome which I think will best serve [Z]’s interests at this interim stage. I have to balance the need to protect [Z] from being exposed to further instance of family violence, which may cause him psychological distress, with the need for him to have a proper level of relationship with both his parents. Those are the primary considerations, but I also have to consider a number of other matters which are set out in section 60CC(3).
The father’s position is that [Z] is expressing a strong wish to remain in Adelaide. However, I must bear in mind that [Z] is a child of tender years and it is likely that he is a child who is in a situation where his loyalties and love for both his mother and father are somewhat torn. I am also concerned that Mr Shelley may not be the best channel to relay to me any clear view that [Z] has.

More importantly, I have to look at the nature of the relationship [Z] has previously had with each of his parents up to this stage. It is common ground, between the parties, that Ms Schmidt has been [Z]’s main provider of care for a very long time indeed, albeit that

Mr Shelley has been a living and constant presence in [Z]’s life. Necessarily this has been less so since he moved to live in Adelaide. So it seems to me that the most important person in [Z]’s life is likely to be his mother, Ms Schmidt.
Associated with her is her younger child, [V], [Z]’s half brother. As the two boys have essentially lived in the household – the same household since [V] was born – I have little difficulty in reaching the conclusion that [Z] also has a very significant relationship with [V]. This significant sibling relationship has been severed at this stage.
Mr Shelley does not have significant criticisms of Ms Schmidt’s parenting of [Z] up to this stage. His criticisms centre on her ability to protect [Z] from the behaviour of Mr B.
The orders that were made at the [omitted] Local Court remain on foot. I have to be careful about allowing a parent to unilaterally change arrangements for the care of a child which are long standing.
It is undoubtedly the case that there is a long standing arrangement whereby [Z] lives with his mother. I think it is also central that

Mr Shelley concedes that the agreement between him and Ms Schmidt was that [Z] would be returned to Brisbane after a week. Accordingly, it is clear that Mr Shelley did not have Ms Schmidt’s permission to retain [Z].
I do not dismiss the episode of family violence involving Mr B.

I regard it as a serious incident. But on the evidence I have heard

Ms Schmidt did not precipitate the incident concerned and in my view, responded to it appropriately by informing Mr Shelley and immediately seeking assistance from his brother and the police.
I am required to make orders that are commensurate with the degree of risk implicit from that episode of family violence. I do not think it a proportionate response that [Z] remain in Adelaide, away from his long-standing custodian – Ms Schmidt – and his half sibling, [V]. Rather, I am of the view that, if I make an injunction restraining Mr B from coming to the Property T property, other than to collect and return [V], that is a proportionate and appropriate response.
So, at this stage, I have come to the view that [Z]’s best interests will be served if he is returned to his mother’s care pending further investigations into this matter. So, for those reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I will further order that the evidence of each of these parties be transcribed, together with these reasons for judgment. I will adjourn the matter for further hearing and, if necessary, to fix a final hearing date to 9 June 2011 at 9.30 Australian central time.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 19 April 2011