SLD and EJD
[2002] FMCAfam 266
•9 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLD & EJD | [2002] FMCAfam 266 |
| FAMILY LAW — Children — removal of child from Victoria to Queensland — Recovery Order — application for stay of Recovery Order — disapproval of exercise of self-help by wife. |
| Applicant: | S L D |
| Respondent: | E J D |
| File No: | (P)MLF 1558 of 2000 |
| Delivered on: | 9 August 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 9 August 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodges (via telephone) |
| Solicitors for the Applicant: | Hillhouse Burrogh McKeown |
| Counsel for the Respondent: | In person |
ORDERS
The Recovery Order made in the Federal Magistrates Court of Australia at Melbourne on 11 July 2002 be suspended until 9.00 a.m. on 12 August 2002.
Until further order, the mother be and is hereby restrained by injunction from removing the children M born 7 October 1993 and L born 28 June 1988, or either of them from the day to day care of the father.
The matter otherwise be adjourned to 3 September 2002 at 9.45 a.m. in the Melbourne duty list (for mention only).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
(P)MLF 1558 of 2000
| S L D |
Applicant
And
| E J D |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Before me today is an application filed on 8 August 2002 in the Brisbane registry of the Family Court of Australia seeking that the recovery order which I made on an ex parte basis on 11 July 2002 not be enforced pending the hearing of the mother's application for residence — which was filed on 12 July 2002 and which, as I understand it, is listed for mention in the Family Court of Australia at Brisbane on 23 September 2002. In the alternative, it is sought that the execution of the recovery order be stayed pending the hearing and determination of the mother's application for residence.
The situation is that the husband appeared before me on 11 July 2002 seeking a recovery order. He had filed an application on that day which was in handwritten form. In support of that application he had sworn a short affidavit. Also available to me on that day was a copy of the parenting plan entered into between the husband and the wife and dated 16 May 2000.
During the hearing before me on 11 July 2002, Mr D was sworn and gave oral evidence. He tendered a letter dated 10 July 2002 written by the wife to him. The letter reads, and I shall read it into the transcript because I am not sure that counsel for the wife has a copy of the letter:
Dear E,
This is to inform you that as we have not been able to come to an agreement regarding M I had to resort to seeking further legal advice about her wishes and our discussions regarding my concerns. I have been advised to take M with me back to Queensland today.
Please do not question anyone else about M's departure with me as I did not involve anyone else.
S.
P.S. Please also do not take any of this out on L as she did not know until not long before we left.
L is M’s sister. Both girls resided with the husband until 10 July 2002. L continues to reside with the husband.
I do not propose to review the formal details of this matter in these Reasons. It seems to me to be necessary to deal with the matter as promptly as is possible in the circumstances. The application clearly relates to the welfare of the child M, who was born on 7 October 1993. M is not yet nine years of age. There is, as I have stated, another child of the parties' relationship, L — who was born on 28 June 1988. It is apparent from the terms of the parenting plan that both girls have lived with the husband since shortly after the time when the parties entered into the plan. There is no doubt that the existing status quo — until 10 July 2002 — was to the effect that both girls lived together in the home of the husband in these proceedings.
The parenting plan sets out arrangements for contact between the wife and the two girls. In paragraph 6 of the parenting plan it is recorded that L and M are to primarily reside with their father from the date of the mother's departure to Queensland – which is there expressed to be August 2000. In paragraph 4 of the parenting plan it is recorded that if in future L and M wish to reside with the wife, then a further counselling session is to be held with the Family Court. It would appear that, according to the wife, M has expressed a wish to reside with her. It would appear from the material filed on behalf of the wife that counselling has taken place.
What is abundantly clear, however, is that no agreement was reached between these parties to the effect that M was to leave the care of the husband and commence living with the wife. It is apparent from the material which was referred to by the wife today that prior to the wife travelling to Melbourne in June 2002 for the purpose of exercising contact with the two girls, she had given instructions to solicitors in Queensland with a view to commencing proceedings in that State to obtain orders for the residence of M. During the course of the hearing today I directed the attention of counsel for the wife to various passages in the very lengthy affidavit of the wife sworn on 11 July 2002, which passages reveal that at the time the affidavit was prepared M was living with the husband. In paragraph 62, for example —and there are other references, but this will do for present purposes — the wife refers to her forthcoming visit to Melbourne and her plans to make contact with E's father. The thrust of the affidavit is clearly to the effect that the wife had yet to leave Queensland for Melbourne. It would appear that certain paragraphs may have been added to the affidavit immediately before it was sworn after the wife's return to Queensland with the child.
In the case of Sillars v Sillars (1986) FLC 91-756, the Full Court of the Family Court dealt with a scenario in which a party to a marriage had exercised self-help. The party had taken a child from the care of the residence parent and removed the child to another State. In the case of Sillars, the situation was that the relevant child was removed from Perth to Sydney. At page 75,527 of that report, Lindenmayer J said this:
In my opinion, the husband's case as presented to the learned trial judge was totally without merit. He had gone to Western Australia where the parties and their children had resided throughout cohabitation and in company with others and with at least an implied threat of violence had removed a child of the marriage from the de facto custody of the wife with whom that child had resided continuously since the separation of the parties some 20 months before.
I pause at this stage to say that there is no indication in this case that the wife acted in company with others, or that there was any implied threat of violence. But the reality is that the wife did indeed remove M from the custody, to use the old term, of the husband. I have already indicated that M had lived with the husband with the consent of the wife since approximately August 2000.
I continue with the quote from Sillars:
He then immediately transported that child right across Australia to Sydney. He knew that there were proceedings pending in the Family Court of Western Australia in relation to, inter alia, the custody of the children. If he considered that the child was in imminent physical or moral danger in the wife's custody he could and should have brought an urgent application for interim custody of that child in that court before or at least immediately after taking possession of that child, and before returning with her to Sydney. Instead of doing so, he resorted to blatant self-help and when confronted with the order of Connor J,...
(Connor J was then a judge of the Family Court of Western Australia, and had ordered a warrant for the return of the child to that State.)
I now continue with the quote:
...which could hardly have come as a surprise to him, he sought to enlist the aid of the Family Court of Australia to secure his ill-gotten possession of the child and to frustrate the intent and purpose of a valid order made by a court which was not only a court of competent jurisdiction but one of equal jurisdiction and status with the Family Court of Australia, and also the court most appropriate to deal with the issue of the custody of this child. I regret to say that he succeeded. In my opinion,…
and this is the opinion of Lindenmayer J set out at page 75,528 —
…he ought to have been sent immediately packing with the child back to Western Australia, to submit himself and the child to the jurisdiction of the Family Court of that State, which was the court seized of jurisdiction in relation to the matter. That would have done the husband no injustice and no irreparable harm to the child because the husband could have applied immediately to Connor J to set aside his order...
I do not propose to proceed further with the quote from that case, save to record that at the end of that passage Lindenmayer J said,:
Instead, (that is, instead of the matter being handled properly and according to law) the parties and the court became embroiled in a morass of needless and fruitless litigation, the end result of which has been and could only be chaos and confusion...In my respectful opinion, the whole process has been inimical to the proper administration of family law in this country.
In the case before me there is absolutely no doubt that the two children were resident in the State of Victoria with their father. However strong the wife felt that her case may have been, it was quite inappropriate for her to exercise blatant self-help in the manner that she did — whether or not she obtained legal advice to the effect that she should behave in such a way. In my view, the issues now before the Court are similar to those which must be considered in an interim residence argument. The leading case in the area of interim residence is of course the Full Court decision in the matter of Cowling (1998) FLC 92-801. I do not propose to set out in these Reasons the various paragraphs from Cowling, but the relevant passages are clearly those contained in paragraphs 18 to 25 (inclusive) of the decision.
I now wish to consider this matter in the light of the decision in Cowling.
Paragraph 20 of Cowling indicates that, having regard to the provisions of section 65E, and in determining what interim parenting order should be made, the court must regard the best interests of the child as the paramount consideration. I wish to state now, and as clearly as I can, that the best interests of the child M are indeed my paramount consideration in these proceedings. I have read the material referred to by Mr Hodges on behalf of the wife. As yet, that material is untested, in that the husband has filed no response to it. That is because of the financial situation of the husband, but I understand from him that material in response will be filed in due course. The husband has also indicated that it is his intention to apply to have the proceedings transferred for hearing in this Court.
In my view, that application (i.e. the application for transfer) is an application that — in law — must succeed. I cannot imagine a Court properly seized of the facts of this case concluding that it is appropriate to deal with this matter in Queensland. In my view, it is in the best interests of M to remain in the care of her father — where she has been for the period since August 2000 — until such time as all relevant matters can be properly investigated, and all relevant evidence placed before the court and tested in the usual way.
Paragraph 21 of Cowling reads:
Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made must promote that stability.
In this case, the stability that this child has enjoyed is with her father. It may well be that the child has recommenced her education at a new school in Queensland, and is perhaps now in the process of making new friends and embarking upon new activities. But the fact of the matter is that it may take some months for these proceedings to reach trial. It may well be that at the end of the day the court will conclude that the wife should be granted residence of M – but at this very early stage of the proceedings it is impossible to conclude that the husband will not be awarded residence of M, and that she will not continue to reside with him, and with her sister, in Melbourne.
If that is to be the case, then the harm to M, in my view, would be greater if she were allowed to continue at her school in Queensland at the present time, and for some months to come, than if she were to be returned to her old school and her old environment and her old friends now — before those links to those things become tenuous.
Paragraph 22 reads:
Where the evidence clearly establishes that at the date of hearing the child is living in an environment in which he or she is well-settled, the child stability will usually be promoted by the making of an order that provides for the continuation of that arrangement until a hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by he or she remaining in that environment.
In my opinion, the evidence before me (which is principally the evidence of the wife, although I take into account the evidence that I heard from the husband at the time that the recovery order was made on 11 July 2002), clearly establishes that M was living in an environment in which she was well-settled until such time as the wife acted in the manner that she did on 10 July 2002 — when she failed to return the child after a contact period and, without telling the husband, embarked upon a course of self‑help and relocated with the child to Queensland.
In my view, there is no convincing proof that this child's welfare would be really endangered, or endangered in any way whatsoever, if she were to remain in the environment which residence with her father would provide. Counsel for the wife made no attempt to point out to me any parts of the wife's evidence which would amount to convincing proof that the child's welfare would be really endangered as a result of being returned to her father at the present time. I have no doubt that there would be a disruption in this little girl's life, but the disruption has come about wholly because of what I believe to be the irresponsible and thoughtless actions of the wife in this matter.
The wife had clearly given instructions to her solicitors — prior to travelling to Melbourne in June — to make an application for residence of the child. That was a reasonable and responsible thing for her to do. But what she then did was to endeavour “to create facts on the ground”, to support the case that she proposed to press in another State. It is not to her credit that she involved the child in her plan.
Paragraph 23 reads:
Fourthly, the court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the court to take account of the circumstances giving rise to the current status quo.
In my view, if one wishes to regard the present arrangements, namely the child living with the wife in Queensland, as being a status quo, then it is clear beyond argument that the arrangements did not arise by virtue of an agreement between the parties, or indeed as a result of acquiescence. The fact is that the current arrangements were unilaterally imposed upon the husband by the acts of the wife. I am compelled, as well, to look at the duration of the current arrangements. Clearly, they have been very short indeed, even in the context of the life of this little girl. The wife was aware of the recovery order from almost the day that it was made. It was not until earlier this month, some two or three weeks after the making of the order, that the wife saw fit to make an application for a stay.
In this case, the real status quo is that which favours the husband. This little girl has been living with her father and her sister since the parenting plan was implemented. Those circumstances arose by agreement between the parties and they remained as a result of acquiescence on the part of the wife.
Paragraph 24 reads:
Where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well-settled, some limited evaluation of the relevant matters referred to in section 68F(2) needs to be undertaken.
I turn now to consider the provisions of section 68F(2). Before I do so, however, I wish to make it clear that, in my view, the evidence does indeed establish that, until the wife took the law into her own hands and removed M from the care of her father, the child was living in a well-settled environment. It is my view that the child is not now — at this moment — living in a well-settled environment. The current environment is one which the wife must have known was likely to be challenged. It is for that reason that she acted in the way that she did, and for that reason that her solicitors prepared and ultimately filed the application that they did.
In any event, if I am compelled to look at section 68F(2), then I make the following observations:
a)Firstly, insofar as wishes expressed by the child are concerned: it may well be that M who, as I have indicated, is not yet nine years of age, has expressed some form of wish to reside with the wife — perhaps even a strong wish. But in my view, and at this point in the proceedings, those wishes, if they exist, should be given very little weight. Indeed, having regard to the manner in which these proceedings have been brought before the Court, and to the actions of the wife on 10 July 2002, I have grave doubts as to whether the wife is in fact telling the truth regarding the child's wishes. The exercise of self-help must always cause a Court to question the bona fides of a party who has acted in such a manner[1].
[1] See Sillars, per Emery J at p 75,525
b)Nevertheless, it may well be that the child has expressed wishes to the effect that she should reside with her mother. She is a very young child and the wife — in a passage in the affidavit referred to by Mr Hodges during the course of these proceedings — herself indicated that those wishes did not necessarily appear to be validly based. Nevertheless, at the end of the day it may well be that the child wishes to reside with her mother. That is a matter that may be relevant – but in my view, the weight to be attributed to it is negligible at the present stage of the proceedings. It would appear, on my reading of the wife's documents and having regard to the submissions made to me by Mr Hodges on behalf of the wife, that the wife has endeavoured to build an entire case on those wishes. If that is so, then it seems to me that the case is a flimsy one.
c)Next: the nature of the relationship of the child with each of the child's parents and with other persons. In the context of these proceedings, and at this time, it is sufficient for me to say that, in my view, and on the basis of the material before me, there is nothing to suggest, or nothing to suggest to any great extent, that the child has anything other than a very good and loving relationship with her father and with her sister. I have no doubt that the child has a close and loving relationship with her mother as well.
d)Section 68F(2)(c) is the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child and other person with whom he or she has been living.
e)This child has been removed from the care of her father in the circumstances to which I have referred. In my view, the likely effect of that is that the child will miss her father and miss her sister and will feel discomfort and insecurity as a result of the manner in which she ended up in the care of the wife. Clearly, this is not the child's fault, and having seen and heard the husband give his evidence in July 2002, I am satisfied that there is not the slightest possibility that the husband would blame M for having travelled to Queensland with the wife.
f)The likely effect on the child of separation from her mother if she were to be returned to Victoria, in my view, is not great because the child must have known — as the wife would have known — that there were grave difficulties associated with the manner in which the child was removed from Victoria to Queensland. Further, and in any event, the situation which had adhered from the time of the implementation of the parenting plan until 10 July was that the children resided with the husband and had regular contact with the wife. Clearly, there is no reason why the regular contact between M and her mother ought not to be able to continue.
g)The question of difficulty and expense regarding contact seems to me to be irrelevant at the present time, given that these parties lived in different States prior to the actions of the wife in July 2002.
h)Section 68F(2)(e) is the capacity of each parent or of any other person to provide for the needs of the child, including emotional and intellectual needs.
i)It is my view, on the material before me, that, at least on a preliminary basis, I am able to conclude that both parties have the capacity to provide for the physical needs of the child. I am concerned, however, about the wife's capacity to provide for the emotional needs of this little girl — having regard to the fact that the wife elected to remove her from her place of residence and travel with her to Queensland, well knowing that the likely effect of her so doing was that a recovery order may issue. After all, the wife’s letter suggests that she acted on legal advice. The wife has seen fit, notwithstanding the existence of the recovery order, to remain in Queensland and to enrol the child in school there. She has, as it were, put all her eggs in one basket – at the cost of the child. In my view, that does not augur well for the emotional needs of this little girl if the mother were ultimately to be responsible for her care and supervision on a full‑time basis.
j)Section 68F(2)(f) appears not to be relevant in the context of these proceedings. Nor would it appear that subparagraph (g) is relevant.
k)Sub paragraph (h) refers to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. I have little to say about that matter that was not said in the context of my discussion under the general heading of sub paragraph (e).
l)Family violence would not appear to be a relevant consideration in this matter.
m)Sub paragraph (k) requires the court to consider 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.
n)This is a difficult provision to understand, and it is awkwardly drafted. In the context of the present proceedings, however, it is my view that the preferable order, and that which would be least likely to lead to further proceedings in the short term, is an order dismissing the wife's application for (in effect) a stay of the recovery order — although I will be inquiring of counsel for the wife as to whether she is prepared to willingly return the child to this State. If she is not prepared to do so, then I will direct my Associate to make contact with the Federal Police in the State of Queensland, to ensure that the recovery order is executed at the earliest possible opportunity - preferably this afternoon or tonight.
o)Finally: “any other fact or circumstance that the court thinks is relevant”. In my view, there is no other fact or circumstance in the context of this case that is relevant.
I turn now finally to paragraph 25 of the Cowling decision — which indicates that in determining whether at the date of hearing a child is living in a settled environment consideration should be given to various matters. In my view, I have already given consideration to those matters, but to the extent that I may not have done so, the reality is that the child has lived in the environment provided by the husband for the period that I have referred to. Her sister has also resided with the husband for that period, and continues to reside with him. The educational needs of the child, in my view, are such that she should be returned, as soon as possible, to the school that she attended prior to the wife removing her from this State.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the Reasons for Judgment of Walters FM
Associate:
Date: 22 August 2002
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