Smeth & Romero
[2022] FedCFamC1F 703
Federal Circuit and Family Court of Australia
(DIVISION 1)
Smeth & Romero [2022] FedCFamC1F 703
File number(s): PAC 1924 of 2022 Judgment of: AUSTIN J Date of judgment: 14 September 2022 Catchwords: FAMILY LAW – Children – Best Interests – Recovery order – Where final parenting orders were made in the father’s absence providing for the mother to have sole parental responsibility, for the child to live with the mother, and for the child to neither spend time nor communicate with the father – Where the father unilaterally persuaded the Australian Federal Police to add the child’s name to the Airport Watch List, preventing the child from departing Australia – Where the mother was forced to leave Australia without the child upon the expiry of her visa – Where the father now seeks revision of the parenting orders – Where the mother seeks the return of the child to her care – Unacceptable risk – Where the father’s case that the child is at risk of harm if she lives with the mother was bereft of probative weight – Where the father’s illicit drug use is liable to deleteriously compromise his capacity to care for the child – Where the child’s best interests are served by her return to the mother’s residential care in the United Kingdom – Recovery order made – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 67R, 67U, 67V, 69ZW, 91B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.07
Cases cited: AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
Cales & Cales (2010) FLC 93-459
Goode & Goode (2006) FLC 93-286
Phillips & Hansford (2019) FLC 93-917
Rice and Asplund (1979) FLC 90-725
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 14 September 2022 Place: Newcastle (via video link) Solicitor for the Applicant: Hillcrest Family Lawyers Solicitor for the Respondent: Solve Legal ORDERS
PAC 1924 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SMETH
Applicant
AND: MS ROMERO
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
14 September 2022
THE COURT ORDERS THAT:
1.This recovery order is addressed to the Marshal of the Federal Circuit and Family Court of Australia (Division 1), all officers of the Australian Federal Police, and all officers of the State and Territory police services.
2.The persons to whom this recovery order is addressed are authorised and directed to find and recover, by force if necessary, X born in 2017, and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found, including the premises situated at B Street, C Town
3.Upon recovery, the child is to be delivered to Ms Romero born in 1981, or to the agent nominated by her in writing to receive the child on her behalf, at the international terminal of the Kingsford Smith Airport, Sydney, NSW.
4.Orders 1, 2 and 3 will remain in force for three months.
5.The Australian Federal Police are directed to forthwith cause the removal of the child’s name from the Airport Watch List.
6.Until the child is returned to the care of the mother, the parties shall take all reasonable steps to ensure the child communicates with the mother by audio-visual internet connection each Sunday at 5.00 pm AEST.
7.Once the child is returned to the care of the mother, Order 5 made on 1 March 2018 is suspended and the parties shall take all reasonable steps to ensure the child communicates with the father by audio-visual internet connection each Sunday at 5.00 pm AEST.
8.Otherwise:
(a)the application for interim relief contained within the Amended Initiating Application filed on 5 May 2022 is dismissed;
(b)the application for interim relief contained within the Amended Response filed on 31 August 2022 is dismissed;
(c)the Application in a Proceeding filed on 2 September 2022 is dismissed;
(d)the Response to an Application in a Proceeding filed on 13 September 2022 is dismissed; and
(e)any and all other applications for interim relief pursuant to Pt VII of the Family Law Act 1975 (Cth) are dismissed.
9.The proceedings are referred back to the docket registrar for further procedural directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smeth & Romero has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These proceedings concern a dispute between the applicant father and the respondent mother in respect of their only child, now aged five years, under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The child was born in Australia in February 2017 as a consequence of a short relationship between the parties.
Proceedings were first initiated by the mother in October 2017 and, on 1 March 2018, those proceedings were concluded by orders made by a judge of the Federal Circuit Court of Australia (as the Court was then known). Such orders were made in the father’s absence. The orders provided for the mother to have sole parental responsibility for the child (Order 4), for the child to live with the mother (Order 3), and for the child to neither spend time nor communicate with the father (Order 5).
Despite the orders being made on an ex parte basis, the father did not re-list the proceedings and seek to re-contest the orders, as the notation to the orders said was his entitlement.
Apparently, by private arrangement between the parties, the child was introduced to the father some years later around late 2020 and she began spending time with the father in or about September 2021.
11 April 2022 was a fateful day. The mother attempted to board a flight to the United Kingdom (“the UK”) with the child so she could take up an offer of employment there, but was prevented by authorities from doing so. It transpired the father had unilaterally persuaded the Australian Federal Police some days beforehand, apparently without any court order, to add the child’s name to the Airport Watch List. On the same day the mother was prevented from departing Australia with the child, the father commenced the current proceedings. He now seeks orders to reverse the child’s residence on both an interim and permanent basis.
The mother is from Country E and only resided in Australia on a visa, which was due to expire and was the reason why she was intending to leave. She was forced to depart Australia upon expiry of the visa two weeks later without the child. She flew to the UK and has since contested these proceeding from there.
Since the mother’s forced departure from Australia, the child has been living with the father and the paternal grandparents in regional NSW, notwithstanding the existing orders made in March 2018 which require the child to live with the mother.
There is now a factual dispute between the parties about whether or not the father agreed to take the child to the mother in the UK to restore the mother’s residential care of the child. Without the father’s co-operation, the child’s return to the mother is impeded by her inability to return to Australia without a visa and the retention of the child’s name on the Airport Watch List.
A week ago, on 7 September 2022, a registrar listed the parties’ interim dispute over orders concerning the child for hearing today (14 September 2022).
Proposals
With the mother now living in the UK, the child presently living with the father in Australia, and the orders of March 2018 not being obeyed, it could hardly be doubted that circumstances have materially changed since orders were last made (Rice and Asplund (1979) FLC 90-725).
The parties’ proposals for interim relief are wildly disparate. The father wants to radically change the orders made in March 2018, whereas the mother wants to try and enforce them.
The father pressed for orders discharging those made in March 2018 and substitute orders for the child to live with him, to spend time with the mother in Australia if she is willing and able to travel, and the parties’ restraint from removing the child from Australia. His proposal is set out in the Amended Initiating Application he filed on 5 May 2022.
The mother pressed for the dismissal of the father’s application, the removal of the child’s name for the Airport Watch List, and the child’s urgent relocation to live with her in the UK. Her proposal was replicated in several different documents, being: her Amended Response filed on 31 August 2022; her Application in a Proceeding filed on 2 September 2022; and her Response to an Application in a Proceeding filed on 13 September 2022. It is unnecessary to discuss why so many documents proposing exactly the same relief were filed.
The proposed order representing the principal form of relief sought by the mother was expressed in these terms:
That the child [name and date of birth] be urgently relocated to live with her mother [name] in [City F], United Kingdom
Some problems with the application for an order in those terms will be immediately apparent.
First, it is an order in rem, not an order in personam. It does not direct either party to do, or abstain from doing, anything. If an order is made in those terms it cannot be enforced. The father is not required to do anything. Nor can the mother act on it from the UK, without entitlement to enter Australia and recover the child. In any event, residence orders specify with whom a child lives, not where the child lives (Cales & Cales (2010) FLC 93-459 at [63]–[73]).
Secondly, the proposed order is not a residence order made pursuant to s 64B(2)(a) of the Act. The mother already has the benefit of the residence order made in her favour in March 2018 and those orders do not confine the location of her residence with the child. Unless an injunction restrains the relocation of her residence beyond a geographic region then, provided she still complies with any other orders concerning the child, the mother can decide where she and the child live (U v U (2002) 211 CLR 238 at 262; AMS v AIF (1999) 199 CLR 160 at 223–224 and 231–232). Nothing presently stops the mother from living with the child in the UK if the child can be conveyed to her.
Thirdly, if the proposed order is intended to be a recovery order made pursuant to s 67U of the Act, the police and other authorities to whom the recovery order is directed (under s 67R) are not empowered to act outside the territorial limits of Australia and cannot return the child to the mother in the UK.
Evidence
The father (with the mother’s consent) relied upon:
(a)his affidavit filed on 5 May 2022;
(b)his affidavit filed on 12 September 2022;
(c)the affidavit of the paternal grandmother filed on 13 September 2022; and
(d)documents produced to the Court by the child welfare agency pursuant to an order earlier made under s 69ZW of the Act (Exhibit F1).
The father sought to rely upon an affidavit of Ms D filed on 13 September 2022, but was not permitted to do so. The father’s lawyer conceded the affidavit was not served upon the mother until 9.00 pm last night, thereby infringing r 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The father’s lawyer sought to excuse the lateness of the affidavit by explaining that she only received instructions from the father about 48 hours ago concerning the alleged significance of Ms D’s evidence, but his application for interim relief has been pending for well over four months. If he chose to leave the compilation of the evidence which he deemed to be so important to the success of his case until so late, the responsibility for any default falls to him. The father’s alternative application to adjourn the hearing to enable the mother more time to grapple with the evidence of Ms D was refused. In any event, the evidence of Ms D was seemingly outlined in emails she sent to a paternal relative many months ago, which emails were attached to the father’s most recent affidavit and so were in evidence anyway.
The mother (with the father’s consent) relied upon:
(a)her affidavit filed on 10 July 2022;
(b)her affidavit filed on 2 September 2022; and
(c)her affidavit filed on 12 September 2022.
By procedural order recently made on 5 September 2022, an Independent Children’s Lawyer (“the ICL”) was appointed to represent the child’s interests, but the ICL has not yet been allocated by Legal Aid NSW.
An order was also made on 5 September 2022, under s 91B of the Act, inviting the child welfare agency to intervene in the proceedings, but the agency has since notified the Court it declines to do so.
Legal principles
Orders in respect of children are made under Pt VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Those principles to which I have just adverted apply whether the contest be an interim hearing or a final trial.
In Goode & Goode (2006) FLC 93-286 the Full Court said:
68.… [T]he procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Further, a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to proper determination at trial. Not every s 60CC factor need be discussed in that process (Banks & Banks (2015) FLC 93-637 at [47]–[50]). The individual factors within s 60CC of the Act need not be recited like a mantra in every case. Only those factors which are relevant need be addressed (Phillips & Hansford (2019) FLC 93-917 at [43]).
If a recovery order is to be made to facilitate the child’s recovery from the father and her return to the mother, then its grant is also governed by the child’s best interests being the paramount consideration (s 67V).
Consequently, it is necessary to turn to the provisions of s 60CC of the Act to determine how the child’s best interests will be served.
Child’s best interests – primary considerations
The father could not gainsay the child’s derivation of benefit from a meaningful relationship with the mother (s 60CC(2)(a)), of which benefit the child has been deprived since early 2022, when the mother was forced to leave Australia without her. The mother must have been the child’s primary attachment figure, as the father played no role in her life until late 2021. Inferentially, the child must despair the mother’s current absence from her life. The restoration of their relationship, preferentially by restoration of the child’s residence with the mother, is of pre-eminent importance.
The evidence about the existence of any meaningful relationship between the child and the father, and the child’s derivation of benefit from it, is scant. The father may honestly believe they have a meaningful relationship, but his belief is not strong, objective evidence of the fact. He has only been a part of the child’s life for the past year. The child has lived with him for only the past five months, under artificial circumstances. The child must realise the father and the paternal grandparents are her only sanctuary at present.
The father led evidence in an apparent attempt to demonstrate that the child was at some risk of harm if she lives with the mother (s 60CC(2)(b)), but the evidence is bereft of probative weight. It comprises evidence from the paternal grandmother and the hearsay evidence in emails authored by Ms D (the mother’s former landlord) that the mother has an explosive temper and has neglected the child’s needs. Notably, the father himself gives no such evidence of such risk.
When asked to refine the submissions about the asserted “unacceptable risk” of harm, the father’s lawyer confirmed it to be:
(a)the risk of the child suffering psychological harm by exposure to family violence, by her witnessing the mother smash items of personal property in anger; and
(b)the risk of the child suffering some form of harm by reason of the mother’s neglect of her physical needs, caused by her poverty.
The father’s lawyer was impelled to concede that if the evidence failed to demonstrate any such unacceptable risk of harm, there was no reasonable option but for the child to be returned to the mother’s residential care.
The father’s lawyer also voluntarily conceded that, had this hearing occurred promptly upon the mother’s departure to the UK, then the “answer” to the present problem would have been “clear”: the child should then have been returned to the mother. However, the father’s lawyer contended the answer should now be different because, first, the mother delayed making her application, and secondly, there is now evidence of the risk of harm she poses to the child.
As to the first assertion, the mother could not possibly have made an application any earlier than the father, because he commenced these proceedings on the very same day he prevented the child from departing Australia with the mother. Thereafter, the mother was only a respondent to his application. His amended application for interim parenting orders was filed on 5 May 2022. Since then, the mother has resisted him and tried to enforce the existing orders. It was not her fault the interim dispute was not allocated an earlier hearing date.
As to the second assertion, the evidence of risk is sourced almost exclusively to the allegations made against the mother by her former landlord. When analysed, the allegations are far from compelling, even when taken at their highest as they have not yet been tested in cross-examination. Trying to do the complaints justice by way of summary, Ms D asserts the mother had little money and no accommodation when they first met, which hardly merits any criticism. After renting accommodation to her, she criticises the mother for keeping the child within the house, without any detail about how often and for how long. She also heard noise emanating from her home, consistent with violent destruction of property within, but again without detail of frequency. Ms D said she thought about reporting her concerns to the child welfare agency but, inferentially, decided not to do so. Presumably, Ms D will be cross-examined at trial, if the father relies upon her as a witness, about her apparent interest in the outcome of the proceedings and the factual premise for her opinions and conclusions.
The child was indeed drawn to the attention of the child welfare agency (Exhibit F1), but the circumstances under which that notification occurred are quire unclear. The mother told the agency that her accommodation had been unstable because she was fleeing domestic violence. She also told the agency she had little outside support in Australia and had considered sending the child to Country E to be cared for by her family for a while. In any event, the agency found the child “always look (sic) happy and healthy” and concluded there were no “urgent concerns” about the child.
The evidence of the mother is that she has since improved her position considerably. She is now employed as a health worker in the UK, earning the equivalent of about AUD $3,134 net per month. She rents a studio apartment and will rent slightly larger accommodation if the child returns to her residential care. She has made arrangements for the child’s enrolment at a nearby school.
The father’s apparent fear about the child’s needs being neglected by the mother is unfounded on the available evidence. Perhaps the mother is prone to temper tantrums, but there is no evidence the child has been harmed physically and the submission that she is at unacceptable risk of psychological harm by reason of the mother’s temper is hyperbole. There is no proper basis to find the child is at risk of harm in the mother’s care.
The same may not be said for the father with any sense of confidence. He admits he is a long-term user of illicit drugs. He is 41 years old and concedes he has used “ice” since he was a teenager. He recently tested positive in a hair follicle test. The paternal grandmother admits she has known of his drug use for the past 23 years. She seemed to imply her opinion that his drug use does not affect his work capacity or his parenting capacity, which does not inspire confidence in either her insight or her capacity to be a protective influence for the child.
Suffice to say, the father’s illicit drug use is liable to deleteriously compromise his capacity to provide residential care to the child. He could not properly care for and supervise her if stupefied by drugs. The child needs protection from the risk of harm by reason of her neglect by him. The father apparently expects the Court will be comforted by the knowledge he lives with the paternal grandparents, implying they will perform some form of supervisory role. However, they are not parties to the proceedings, they have not put themselves forward as supervisors, and the father expressly abstained from proposing an order that restrains him from shifting his residence with the child away from the paternal grandparents’ home.
Child’s best interests – additional considerations
As already mentioned, not every s 60CC(3) factor is engaged by the evidence in every interim dispute. I will address only the factors which appear relevant.
Whatever happens, the child will experience change (s 60CC(3)(d)). She will continue to live with the father instead of the mother in Australia, or alternatively, she will be re-united with the mother in the UK. The father alleged the child might not cope with being moved from the school at which she has been enrolled since January 2022. It is true she might be anxious about doing so, but I reject any implication that the prospect of such militates against her return to the residential care of her primary attachment figure. Children move schools all the time. It is likely the child’s re-unification with the mother would overcome any anxiety the child would experience about being in unfamiliar surroundings in the UK.
No matter whether the child is with the father in Australia or with the mother in the UK, there will be practical difficulty and expense in the child spending time with the non-residential parent (s 60CC(3)(e)). That situation can only be ameliorated by orders which enable the child to stay in touch electronically with the non-residential parent. The father made no proposal about how he could visit the child in the UK and the mother made no proposal about how she would be able to visit the child in Australia.
The parties’ respective parenting capacity has been addressed under s 60CC(2)(b) and there is little more to usefully add at this point (ss 60CC(3)(f) and 60CC(3)(i)). The father fears the mother might still send the child to live with maternal family members in Country E, but on the available evidence that is mere speculation.
Although not the subject of any evidence, when discussing the pragmatic difficulties presented by the mother’s proposed orders, it was submitted that she has already applied for a tourist visa to permit her re-entry to Australia. Even if the application fails and the visa does not eventuate, the mother may be able to appoint an agent to whom the authorities can present the child for her conveyance to the UK (s 60CC(3)(m)).
Conclusion
Whenever a parenting order is sought – and the father is seeking fresh parenting orders – the first consideration is the applicability of the presumption that the child’s parents should be allocated equal shared parental responsibility (s 61DA; Goode & Goode).
The father did not seek the interim allocation of parental responsibility for the child, nor did he make any submission about the presumption. The mother did not seek to disturb the order made in March 2018 granting her sole parental responsibility for the child. She just wants those orders executed. It is not appropriate to apply the presumption of equal shared parental responsibility in this interim dispute (s 61DA(3)) as the mother already has the benefit of an order for sole parental responsibility which the father did not seek to contest on an interlocutory basis.
On the evidence adduced, I am persuaded the child’s best interests are served by her return to the mother’s residential care. Achieving that outcome is not straightforward, particularly if the mother cannot return to Australia to collect the child. Recovery orders will be made for the child to be presented to the mother or her appointed agent at the closest international airport for air travel to the UK. The recovery orders will be in force for three months to enable arrangements to be made in a timely way. If such orders cannot be successfully implemented within that time, it may be that one party will need to make a fresh application for interim orders. Currently, I decline to restructure the child’s parenting arrangements in the manner proposed by the father.
Neither party sought any costs order as part of their interim applications.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 19 September 2022
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