SIEBERT & MAILE

[2018] FamCA 1045

FAMILY COURT OF AUSTRALIA

SIEBERT & MAILE [2018] FamCA 1045

FAMILY LAW – APPEAL – From Court of summary jurisdiction – Appeal from the Magistrates’ Court relating to an ex parte recovery order and orders for change of residence – inappropriateness of the latter on an ex parte basis – orders discharged.

FAMILY LAW – PARENTING – where the substantive parenting proceedings were already transferred to the Federal Circuit Court of Australia but query residual power to make injunctive orders – orders made.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Gallo v Dawson [1990] HCA 30; 64 ALJR 458; 93 ALR 479
Goode & Goode [2006] FamCA 1346
R v Bell; Ex parte Lees [1980] HCA 26; 146 CLR 141; 54 ALJR 412; 30 ALR 489
Re K (1994) FLC 92-461
Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Siebert

RESPONDENT: Mr Maile

FILE NUMBER: DGC 1401 of 2009

DATE DELIVERED: 10 December 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 05 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gordon

SOLICITOR FOR THE APPLICANT: ECK Lawyers

SOLICITOR ADVOCATE FOR

THE RESPONDENT:

Mr Connley

SOLICITOR FOR THE RESPONDENT: Connley McInnes Lawyers

Orders

1. Leave is granted to the applicant mother and the time for filing her notice of appeal against the orders made on 11 September 2018 is extended such that the notice of appeal filed with the application a case of 9 November 2018 is within time.

2. The orders made at the Magistrates’ Court at B Town on 11 September 2018 are discharged. 

3. The mother forthwith return the children X (born … 2006), Y (born … 2007) and Z (born … 2008) to the B Town area to enable the parenting orders made this day to be complied with.

4. Until further order, the mother is restrained by injunction from removing the children from the B Town area. 

5. The recovery order made on 11 September 2018 and directed to The Marshal and All Officers of the Australian Federal Police and All Officers of the Police Forces of the States And Territories of the Commonwealth of Australia is discharged and the warrant to recover is cancelled and to be returned to the Federal Circuit Court at Dandenong.

6. Until further order the children live with the mother.

7. Until further order, the children spend time with the father during each alternate weekend, commencing from the conclusion of school on Friday (or 3:30 pm if Friday is not a school day) until the commencement of school on the following Monday morning (or 10:00 am if Monday is not a school day).

8. Changeovers of the children are to take place outside of the B Town Police Station.

9. That pursuant to Section 68L(2) of the Family Law Act 1975 (Cth) the children X (born … 2006), Y (born … 2007) and Z (born … 2008) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such representation on an urgent basis.

10. That forthwith upon appointment by the said Victoria Legal Aid the Independent Children’s Lawyer file a Notice of Address for Service.

11. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents.

12. That a copy of this order be sent immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

13. The application in a case filed 9 November 2018 is otherwise dismissed.

14. 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Siebert & Maile has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1401  of 2009

Ms Siebert

Applicant

And

Mr Maile

Respondent

REASONS FOR JUDGMENT

1. On 5 December 2018, I made orders which are reflected at the head of these reasons.  Because of the lateness of the day, I indicated I would publish reasons and I do so now.

2. The proceedings are between Ms Siebert (“the mother”) and Mr Maile (“the father”).  They relate to 3 children X (born in 2006), Y (born in 2007) and Z (born in 2008).

3. It is trite to say that this is a complicated parenting dispute into which the Court has been regularly (and perhaps unnecessarily) drawn not to mention the use of the resources of the community.

4. There is now a pending application for both interim orders and final substantive parenting relief before the Federal Circuit Court at Dandenong and the parties understand that the learned Judge there will give them an opportunity to put in place some interim arrangements pending the final determination in whichever Court is appropriate.

5. To assist the Federal Circuit Court, I have made an order for the appointment of an Independent Children’s Lawyer. In considering that order which was not proposed by either party, I have taken into account the various factors contemplated by the Full Court in Re K (1994) FLC 92-461. To the extent that the Full Court there set out a checklist, many of the issues are relevant here.

6. It is also trite to say that some of the facts indeed, the allegations, are concerning if not bizarre. As late as June 2018, the parties signed a document in which they each indicated that they had agreed that they should have equal shared parental responsibility for their children. Subsequent evidence of each of them flies in the face of the requirement of s 65DAC of the Family Law Act 1975 (Cth) (“the Act”) which says that where parents are to have equal responsibility for making decisions about major long-term issues for their children, the order requires them to consult with each other and make a genuine effort to come to a joint decision about that issue. Major long-term issues include education, religion, cultural upbringing, health, and relevantly here, changes to a child’s living arrangements that make it significantly more difficult for the children to spend with the other parent. The parties have honoured that obligation in the breach but not just since June 2018.

7. Each of the parties makes serious allegations against the other, yet, having regard to a notice of risk document filed by the father on 30 October 2018, the Department of Health and Human Services (“the Department”) in Victoria wrote to the Court pursuant to s 67Z of the Act on 15 November 2018 the following:

   The children are not considered to be at significant risk in (the mother’s) care. It is confirmed that the children are residing in New South Wales and are therefore out of Victorian Child Protection jurisdiction. 

8. In its same report, the Department noted the father was suggesting that the problems were the mother’s attempts to estrange the children from their father, exposure to family violence between the mother and her own partners (although they included the father), the mother’s mental ill-health and violent temperament and the mother’s use of physical discipline upon the children with the use of kitchen utensils.

9. The Department also said that they had contacted the school where the children attended in New South Wales and there were no concerns at all.  Curiously, as will be seen below, the Australian Federal Police have been holding a recovery order issued by a magistrate in the Magistrates’ Court at B Town on 11 September 2018 and have been unable to execute it.  The Department seemed to still have no difficulty in saying there was no basis for their intervention. That is particularly significant where the mother claims she quickly left the B Town area fearing for her life and has gone into hiding. 

10. Regardless of the circumstances portrayed by the Department, there is a serious issue to be tried here and in the limited time I had in the judicial duty list, none of the risk issues could be properly determined and accordingly, I have relied upon the Department’s view just as I have expressed it.

    In terms of unacceptable risk therefore, I could not find that the circumstances portrayed by the father (regardless of the background over a number of years of litigation) filed with the state magistrate in September 2018, justified the orders that were then made. Accordingly, the appeal of the mother, as a de novo hearing, must succeed and those orders must be set aside.  Ex parte applications must be carefully considered, particularly relating to children. In this case, more care than usual was required because of the history of changes and lifestyle led by both parents. Where facts are controversial, and they should have been considered so here, an ex parte application to totally change the living circumstances of the children by court order, not to mention having them collected by Police, was inappropriate. Inquiries could have revealed the whereabouts of the children and regardless of the apparent refusal of the mother’s solicitor to provide details of his client, orders could easily and quickly been made that would have enables a court to examine just what was happening. As is now apparent, there are two sides to this story and in the cold light of day, the focus must be on the best interests of the children. The ex parte orders here should never have been made. That does not justify the mother’s conduct either, but no doubt she will have an opportunity to properly explain that. That then leads to the question of what to do in the meantime.

11. Before dealing with the future, it is important to understand the past.

12. The mother and the father have been litigating in the Federal Circuit Court of Australia at Dandenong since 2009. It was said that the local magistrate had issued recovery orders on a number of occasions in the past. The magistrate was given the father’s chronology of events but how much that influenced him, I am unable to say because no reasons were provided.  The magistrate dealt with the father’s application on an ex parte basis and made orders not only removing the children from the mothers care, but removing her responsibility for making decisions as a parent. Below, I turn to the facts upon which the learned magistrate apparently made his decision. In my view, those facts are far from sufficient to be the basis to make the orders, even on an interim basis as contemplated by the learned magistrate.

13. On 9 May 2017, a magistrate ordered that the children be the subject of a recovery order. Presumably, they were so collected and they thereafter lived with the father and spent supervised time with the mother at a contact centre.  By that same order, the mother was restrained from removing or attempting to remove the children from a place more than 30 km distance from B Town in Victoria. At the time that order was made, although it seems that the mother was not present, her solicitor appeared for her and I am unsure how much of the order was consensual.

14. The father’s evidence to the magistrate on 11 September 2018 was that after that order was made, the mother’s behaviour towards him “improved” and as a consequence, the children had “pleasure” in spending time with her. In October 2017, only five months after those orders, the children expressed the view that they wanted to spend equal time with their parents. These children were then aged nine, eight and seven respectively.  The father did not say how significant the views of the children were, but he felt that they should be accepted. His evidence was that his relationship with the mother was going well so that it would therefore be in the best interests of the children to do what they wanted.

15. On 25 October 2017, the father consented to final orders that the children live with the parents on a week about basis. This time the order was made by the Federal Circuit Court at Dandenong when the mother did not have legal representation but it must also be noted that the parties agreed to have equal shared parental responsibility for the children. 

16. All was not that calm however, because the orders provided that changeovers were to take place at school or if not at school, outside the police station. Sooner or later, children must receive the message that the police had to intervene to protect them and/or their parents.  The Commonwealth created contact centres for children and parents who need protection. State Police should not have to be implicitly responsible for interpreting whether they can, or should, intervene.

17. The orders also provided that the mother’s partner, Mr C, was not to be permitted to attend handovers without agreement. Mr C features later in the father’s complaints about the mother and he is not portrayed as a savoury character. Significantly, notwithstanding the apparent calm, both parties agreed to mutual orders that they be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other including their respective partners or using the children to pass on messages or exposing them to family violence. One must wonder in this case whether they understood those terms, let alone the injunctive nature of the orders. Significantly also, the mother agreed to an order that she be restrained by injunction from relocating the children took place more than 100 km from B Town without the father’s consent. That has now been ignored, regardless of her view that she was fearful and needed protection. Even more bizarre was an order that in the event of any dispute, prior to the issuing of any proceedings, the parties would submit to family dispute resolution. That too was apparently ignored if it was ever going to be seriously contemplated by either party. The respective parents were then to enrol in post-separation parenting courses and provide each other with evidence of having satisfied that order.  It must be apparent from what has now transpired that both parties treated their agreement not only with contempt, but in reality, decided not to abide by it. 

18. There comes a point in time where, when history shows that parties treat court orders as a disposable arrangement, something more permanent needs to be put in place.  As the Full Court said in Rice v Asplund (1979) FLC ¶90-725 the Court should not lightly entertain an application to reverse an earlier custody order. The logic behind that philosophy was:

    To do so would be to invite endless litigation for change is an ever present factor in human affairs.

    The Full Court went on to say that there had to be some changed circumstances which justified the serious step to reopen court orders. I would add to that, in circumstances where the parties seem to treat the orders with disdain or contempt, the Court needs to look at a more permanent solution for the sake of giving the parties’ children stability. 

19. Notwithstanding the orders of 25 October 2017, the parties again changed things themselves.  The father’s evidence to the magistrate in B Town was that in early June 2018, the mother approached him again. They discussed how well things were going and how the happy the children were, and because the father was working, she suggested it would be easier if the children lived with her and spent alternate weekends and holiday times with him.  He thought that was a good idea and accordingly, the mother approached him with a typewritten document.  He signed it on 6 June 2018. Indeed, to the learned magistrate, he described that document as “those orders”.

20. It seems common ground that that document was not filed with the Court.  Accordingly, it is presumably a parenting plan or parenting agreement but not one that was registered. However, the father did not tell the learned magistrate any more detail about that relevant period of time.

21. In proceedings pending before the Federal Circuit Court, the mother has filed an affidavit which makes complaints about violence by the father. It may be that in the same period of time that this violence issue was before the State magistrates’ court, the parties were telling the Federal Circuit Court that things were going well for the children. It is the mother’s evidence that each time the children had contact with their father, they expressed to her the threats that the father had made towards her and her partner. That seems to be the foundation for her proposed orders to exclude the father from the children’s lives

22. Whatever happened to the intervention order proceedings, a reasonable inference is that the dispute was between the parents more so than the children save for the following facts or assertions.

23. It will be remembered that on 6 June 2018, the father signed the mother’s typewritten document which he described as “orders”. In his evidence to the learned magistrate he said:

    After another positive discussion with the mother about how well things were going for the children, I signed the document[1].

    [1] Paragraph [19] in the affidavit of the Father, sworn and filed on 11 September 2018

24. It is the mother’s evidence that five days later, around 11 June 2018, Y, the second child, said to her something to the effect:

    Dad calls [Mr C] (the mother’s partner Mr C) a paedophile and a fucking dog cunt. He called you a slut, lazy cunt and said that he was going to bash your head in.[2]

    [2] Paragraph [14] in the affidavit of the Mother, sworn on 4 September 2018 and filed on 7 September 2018

25. Sooner or later all of this evidence will be tested and I have no doubt that the father denies these allegations, but it is in the context of the orders made in October 2017 and the agreement between the parents in June 2018 that all these things were happening. Most concerning however, is the fact that the learned magistrate at B Town was not told of these aberrations. In his voluminous material provided with his affidavit to the B Town court, the father included an affidavit of May 2017. That document does not sit comfortably with his position of 6 June 2018. Inappropriately, he also provided to the learned magistrate a family report dated 2 July 2012.  He did not have permission from the Federal Circuit Court (or this Court) to use that document, regardless of whether or not it was relevant to the issue before the learned magistrate.

26. According to the father, until early July 2018, things went well under the new arrangement signed on 6 June 2018. However there was then a problem with X who had apparently complained about Mr C.  The father said:

    [22]I was very upset to hear this as [Mr Cs] (sic) violence towards his own children and his inappropriate disciplining of my children were key concerns of DHHS during its involvement with the family[3].

    [3] Paragraph [22] in the affidavit of the Father, sworn and filed on 11 September 2018

27. The father was presumably not to know that the Department would ultimately express the views to which I earlier referred.  He said that he contacted the mother but she was “dismissive”, saying that Mr C had not done anything that “wasn’t justified”. Notwithstanding all of these problems, a discussion then took place on 26 July 2018 at which the father described the mother as being “very friendly towards me” and wanting to fix the problems with X. X was persuaded to go to lunch with her mother and then decided that she did not want to go back to the father. 

28. The father then made enquiries unsuccessfully about what presumably was to be his time with the children on the weekend ahead, only to find that the school principal said that the children had not been at school for the week. The school principal had been told by the mother that she had “left the area” and the children were not to be returning to the school. That clearly flew in the face of not only the mother’s agreement in the October 2017 orders for equal shared parental responsibility, but the clear injunction made in the same orders.

1. As the father was unable to make any further contact with the mother, he then decided that the appropriate course was to head for the local magistrates’ court where he sought the orders that the magistrate ultimately made in September 2018.

2. Mr Connley, the solicitor for the father, told me that the learned magistrate had all of the background and had been involved in issuing recovery orders against the mother previously. If that was so, the orders were inappropriate having regard to be discrete evidence of what was happening in June and July 2018.

3. Whilst there may have been some risk to these children because of the concerns about Mr C, or indeed the breach of the mother’s requirements under the injunction, none of that seem to be the reasoning behind the making of the orders.

4. The mother had already engaged solicitors in Sydney and on 10 September 2018, apparently oblivious to the ex parte application to be made by the father on the following day, filed an initiating application in the Family Court of Australia at Dandenong although the location was recorded as the Melbourne registry. One must also question the pre-action procedures issue as the father seems to have had the same solicitors for a long time.

5. Interim orders were sought that the mother have sole parental responsibility for the children and that they live with her and that the father had no time or communication with the children.

6. In an affidavit simultaneously filed, the mother said that on 21 May 2018, she had a meeting with the family dispute resolution practitioner and raised her concerns about the father and the children. Leaving aside the confidentiality of what was then reported, the mother seems to have overlooked or ignored what the father said about the document of 6 June 2018. Indeed, notwithstanding the apparent June agreement by the parties, the mother went on to say that at the end of June, the Department had been involved, but this time it related to the father taking the children to his brother’s home “to watch porno’s”.

7. Where the father described a dispute over X which flowed into the statement that the mother made to him that none of the children wanted to have anything to do with him because he was violent and dangerous, the mother’s evidence was that the children were reporting to her that people going to bash others heads in, including that of Mr C. This was all in the same period where according to the father, “things were going well”. Someone is not being truthful.

8. As evidence of her fear to justify her departure from B Town, the mother said that a man whom she named as a “member of [a] motorcycle club” drove to her house and stopped his car outside the front window with the high beams on. She said he got out of the car with an axe in his hand and started yelling, although she did not say what. She said she then called the police. Notwithstanding this horror, Mr C and the “member of the motorcycle club” then had words which give an indication of their way of solving an adult dispute. When the mother contacted the police, they advised there was no point in them attending because apart from the fact that there were no units available at that time, the “member” had left. It was mother’s evidence that around 11.00 pm on 29 July 2018, she and Mr C and the children drove interstate as she feared for her safety.

9. As I have earlier observed, all of this evidence is contentious and hardly child-focused. However, the purpose of me raising it is that I have grave doubts as to whether the father told the magistrate of the things that he knew.  The police would have known of the incident involving the mother because that occurred on 29 July 2018 but it was not mentioned. It will be remembered that the father had made enquiries of the school and the children had not been there for a week. How much of this was the fear of the mother from violence and how much was deliberately planned, is a matter for another court to determine. How any of this justifies the mother’s breach of the injunctive orders is also a question that needs to be carefully considered.

10. The learned magistrate at B Town issued a recovery order which went to the Australian Federal Police. It would seem they were unable to execute it, although they became aware that a solicitor acting for the mother had filed documents in the Family Court of Australia on 10 September 2018. I was informed that when the Australian Federal Police contacted the solicitor, he declined to tell them where is client was. I do not know whether that is correct but if it was, the solicitor might contemplate his professional duties as outlined in R v Bell; Ex parte Lees [1980] HCA 26; 146 CLR 141; 54 ALJR 412; 30 ALR 489.

11. In the hearing before me, counsel briefed by the mother’s solicitor informed the Court that her instructing solicitor (presumably the same one just mentioned) said he did not know where his client lived. I find that bizarre in circumstances where the Department in Victoria has made contact with the school at which the children are attending in New South Wales to find that there are no problems in relation to the mother’s care of the children. To the extent that the solicitor was receiving instructions, he has obligations to the Court.

Application for extension of time to appeal

1. The mother’s evidence was that she did not know of the recovery order until it was brought to her attention in October. The solicitor for the father expressed disbelief in relation to that on the basis of what I have just referred to. I too struggle with the mother’s assertion, having regard to the fact that the Australian Federal Police were quickly on to the solicitors for the purposes of endeavouring to execute the recovery order. No doubt that issue will become relevant at trial.

2. Counsel for the mother submitted that the mother should be given an extension of time to appeal against the orders.

3. The granting of leave involves the exercise of discretion, the purpose of which is to enable the Court to do justice between the parties. The timeframe therefore must be considered in the context of whether a refusal by virtue of the rule would work and injustice having regard to the nature of the litigation and the consequences for the party who seeks the indulgence (see Gallo v Dawson [1990] HCA 30; 64 ALJR 458; 93 ALR 479 per McHugh at [480]).

4. Even allowing for the fact that I have serious doubts about the mother’s assertion that the recovery order was not brought to her attention until October, all the matters that I have set out above would indicate that the learned magistrate was either not told of the comprehensive factual matrix or indeed, was misled about the basis upon which there was urgency justifying an ex parte parenting order of the magnitude pursued by the father. 

5. To decline the mothers application on the basis of a time constraint in the Family Law Rules 2004 (Cth) (“the Rules”), would clearly create not just an injustice to her in those circumstances, but also place the children in a position inconsistent with the agreement of the father made in June 2018. The unusual feature also is the position articulated by Mr Connley on the father’s behalf. Mr Connley said that all his client wanted to do was to have the relationship that he anticipated when he agreed to the “orders” in June 2018. Be that as it may, in the circumstances in which the children now find themselves, the obvious conflict between their parents might very well justify the exclusion of one of these parents from the children’s lives if they cannot behave like responsible parents in relation to the raising of their children.

6. In my view, to exclude the right of appeal against the magistrate’s order would create not only an injustice to the mother but also potentially be prejudicial to the interests of the children. Accordingly, I grant leave and extend the time that the mother to rely on her appeal.

The appeal

1. Chapter 22 of the Rules sets out that an appeal lies from a court of summary jurisdiction. It was not suggested by Mr Connley that his client did not understand the nature of the appeal. Section 96(4) of the of the Act provides that the hearing shall “proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the court of summary jurisdiction”. Accordingly, this hearing is to be determined on a de novo basis.

2. Having regard to the matters mentioned earlier about what happened in the period from June 2018 through to early September 2018, the evidence which seems uncontroversial (see Goode & Goode [2006] FamCA 1346) is that the parties had worked towards and reached agreement on 6 June 2018 that the children were to remain primarily in the care of the mother and the father was to see them on alternate weekends. Their agreement repeated the fact that there was to be equal shared parental responsibility.

3. After their agreement, there were immediate problems with X, but there was no suggestion of a problem about the other two children having a relationship with both parents. I exclude from the determination the facts associated with the allegations against the father as they are denied. I exclude the evidence in relation to the fear expressed by the mother relating to the motorcycle “member” on the basis that Mr Connley (admittedly from the bar table) said that as a practitioner in that town for over 20 years, he knew of no such connection of any person with the named motorcycle club. That simply indicates there is a factual dispute about that matter and as a result of what I can determine, that evidence is disputed. 

4. I have the important evidence of the Department that the children are not at risk. To the extent that s 60CC(2) of the Act is critical here, the protection of the children must outweigh the question of endeavouring to have them benefit from a meaningful relationship with both parents. Here however, the Department was not troubled about the mother’s care of the children.

5. It is no longer necessary for the Court to endeavour to slavishly follow all of the best interests principles in s 60CC of the Act in circumstances where I am being asked to put in place a holding order, but it is obvious that the mother is caring for the children and she was content for the father to have reasonable time with them only a few weeks ago.

6. Accordingly, on an interim basis, orders should be made consistent with what was agreed in June 2018 as a holding order until the learned Federal Circuit Court Judge can have a look at the matter on 17 December 2018.  I would not be prepared to make orders for the forthcoming summer school holidays nor any of the other matters mentioned in the document of 6 June 2018 without those issues being specifically canvassed.

7. To assist the Federal Circuit Court therefore, an Independent Children’s Lawyer will be urgently sought so that enquiries can be made to assist his Honour.

Injunction against the mother

1. The father now seeks an injunction for the mother’s return. That gives rise to an interesting issue of this Court’s power.

Jurisdiction and power

1. Prior to the mother lodging the application in a case relating to the appeal from the magistrate, both parties attended a directions hearing with a registrar in respect of the substantive application. The mother’s solicitor attended by telephone. It is not apparent what took place other than the registrar made an order transferring the proceedings under s 33B of the Act to the Federal Circuit Court of Australia at Dandenong. That gives rise to the question of what power the Court has upon the conclusion of an appeal from the State magistrates’ court after such a transfer.

2. It is imperative to the sake of the children that uncertainty not fester any longer. The mother can no longer simply defy her own agreement and ignore the father’s responsibility to make decisions as a parent. For his part, the father needs to know what role he will have in the lives of the children. For the sake of the children, they need to have some understanding of whether they will have a future relationship with their father. To do nothing may defeat and delay the power of the Federal circuit Court Judge on 17 December 2018.

3. Section 33B (1) of the Act says:

   If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Circuit Court of Australia.

4. Section 33B (7) of the Act provides:

   If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court of Australia.

5. In my view the section is sufficiently wide to enable me to make the orders for the return of the mother and the continuation of the relationship between the father and the children. Neither party argued that that power did not exist.  It should be exercised here.

6. I gave counsel for the mother an opportunity to seek instructions as to why the oral application of the father should not be granted requiring the mother to return to the B Town area. The orders of October 2017 made clear that the parties agreed that no such move would be undertaken without agreement. Further, the mother’s evidence as filed in September indicate that her fear for her safety arose from a dispute which seems to involve a person other than the father. If it is suggested by the mother that the Court should infer that the father orchestrated the involvement of the motorcycle “member”, I would not draw the inference on an interim and untested evidentiary basis.

7. I would only be repeating myself to refer back to the father’s own evidence about what was happening in June 2018 and indeed, the mother’s preparation of the 6 June document. That arrangement clearly indicates that the mother, contemplated living in the B Town area. To make her return to B Town would now be difficult having regard to the fact that the children have changed schools and she has presumably given up the accommodation she had in that town. However, the important part of the June arrangement was that the father would be able to have the time on alternate weekends with the children. As such, it is not imperative that the mother live in the B Town area, but that she at least be able to provide the children to the father to coincide with the time that he anticipated he would have under the June 2018 “orders” if indeed those orders or agreements are not subsequently discharged by any orders of the Federal Circuit Court on 17 December 2018. Clearly, the Department has not indicated any concern such as to indicate a desire to intervene in the proceeding and there is no suggestion from any police record to indicate that they saw some urgency in obtaining protection for the mother. In those circumstances, there is no basis for the mother not to be at least able to provide the children under the June arrangement. 

8. The oral application of the father may be seen as being brought under s 68B or indeed s 114 of the Act. In my view, the agreed evidence shows that it was in the best interests of the children to have an ongoing relationship with their father. There were periods of time up until 2017 when the children were entirely in his care. It must therefore be seen that having regular time with him was in their best interests, but that is not to say that the mother does not have an entitlement to make an application in the future for proper relocation based on sound evidence. At the moment, that evidence is lacking.

9. Section 64B(2) of the Act sets out the Court can make an order dealing with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for that child. Section 65D(1) of the Act provides that in contemplating whether to make a parenting order, the Court may make such parenting order as it thinks proper. The parties clearly thought the parenting arrangements in June were proper because otherwise, they would not have signed the document. The evidence of what has occurred since then has not convinced me that there is any basis to change those arrangements. For the mother to simply leave the state without explanation other than that to which I have referred, means that the arrangements which would continue the father’s relationship with the children have been thwarted. The mother needs to ensure that those arrangements are resumed and accordingly, an injunction should issue until further order the purposes of the welfare of the children (s 68B of the Act) and to the extent it is necessary to say so, the power of the Court also lies in s 114(3) of the Act.

10. In my view is in the best interest of the children that the mother return and she can make a proper application to leave the B Town area if she considers that the children’s needs so require.

11. Accordingly, the orders are as set out at the commencement of these reasons.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 December 2018.

Acting Associate:

Date:  10 December 2018