Tag v RLH

[2010] NSWLC 10

Local Court of New South Wales

CITATION:	TAG v RLH [2010] NSWLC 10
JURISDICTION:	Civil
PARTIES:	Applicant: TAG (Father) Respondent: RLH (Mother)
FILE NUMBER:
PLACE OF HEARING:	Albury Local Court
DATE OF DECISION:	04/09/2010
MAGISTRATE:	Magistrate Lerve
CATCHWORDS:	Family Law – Interim Orders – paternity – presumptions as to paternity – jurisdiction of Local Court to make interim orders – relocation – nature of orders.
LEGISLATION CITED:	Family Law Act 1975 (Cth)
CASES CITED:	Goode –v- Goode [2006] Fam FCA 1346 Morgan & Miles (2007) FLC 93-343 MRR –v- GR [2010] HCA 4 Ulmarra –v- Radley [2010] Fam CA 41
TEXTS CITED:
REPRESENTATION:	Ms. E. Hill, Solicitor of Skinner Associates of Albury Ms. D. Garwell of Pogson Cronin Solicitors of Albury as agent for Craney Family Solicitors of Newcastle
ORDERS:

REASONS FOR ORDERS MADE ON TRANSFER TO THE FEDERAL MAGISTRATE’S COURT

1. This matter is in the nature of a Family Law Dispute, and accordingly, one that does not ordinarily come to be considered by the Local Court of New South Wales, this Court being a Court of Summary Jurisdiction. However from time to time this court is called upon to hear and determine matters at least on an interim basis where there is some urgency attending to the matter. 2. Given the mother’s unilateral relocation from Albury/Wodonga to the Hunter Valley area, in circumstances where up until that relocation the child spent substantial time with the applicant father, I am of the opinion that there is that urgency in this matter.

3. This matter came before me at Holbrook on 7 April 2010. It was listed at Holbrook because of the perceived urgency attaching to the matter and given that there was hearing time available in the afternoon of 7 April 2010. Submissions continued until after 4pm and I took the view and I remain of the view that it was appropriate to adjourn the matter for proper consideration. These reasons are prepared quite quickly, and essentially in my own time.

4. The matter concerns the child LRH born on 14 July 2006.

Jurisdiction

5. The respondent mother objects to this court dealing with the matter other than transferring the matter to the Federal Magistrate’s Court (FMC) and making an order for parentage testing. However, in the course of submission it was conceded, and appropriately so, that this court has power to make orders on transfer of a matter to the FMC. Sections 69N(1) to 69N(4) inclusive of the Family Law Act 1975 provide:

(1) This section applies if:

(a) proceedings for a parenting order (other than a child maintenance order) are instituted in a court of summary jurisdiction (other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia); and
(b) the respondent, in answer to the application by which the proceedings were instituted, seeks an order different from that sought in the application.
(2) The court must, before going on to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to:
(a) the Family Court; or
(b) a Family Court of a State; or
(c) the Supreme Court of the Northern Territory; or
(d) the Federal Magistrates Court.
(3) If the parties do not consent to the court hearing and determining the proceedings, the court must transfer the proceedings to:
(a) the Family Court; or
(b) a Family Court of a State; or
(c) the Supreme Court of the Northern Territory; or
(d) the Federal Magistrates Court.
(4) Before transferring the proceedings, the court may make such orders (including an order under subsection 62F(2)) as it considers necessary pending the disposal of the proceedings by the court to which they are transferred.

6. It is therefore tolerably plain that this court has limited powers to make orders on transfer of this matter to the FMC. Paragraph 11 of the orders made in this matter today has the effect of transferring the matter to the FMC. Curiously section 62F referred to within s. 69N(4) has been repealed, and accordingly, is of no relevance.

7. In paragraphs 18-22 inclusive of her affidavit filed in the proceedings before me the mother expresses doubts that the applicant father in the matter presently under consideration is the natural or biological father of the child. In the course of submissions it was put that the respondent mother regularly expressed these doubts to the applicant father. The respondent father maintained that that was not the case.

8. The fact that the issue of paternity has been raised brings me to consider the next threshold issue, namely, the standing of the father to bring this application. Section 65C of the Family Law Act provides:

65C Who may apply for a parenting order

A parenting order in relation to a child may be applied for by:

(a) either or both of the child’s parents; or

(b) the child; or

(ba) a grandparent of the child; or

(c) any other person concerned with the care, welfare or development of the child.

9. In the matter before me the father would be able to rely on s. 65C(c) to bring this application and to be heard on that application. The father pays child support, and until the mother’s relocation to the Hunter Valley was spending five days per fortnight with the child and was actively involved in decisions relating to the child. In addition to s. 65C(c), it is my opinion that the father would also be able to rely on the presumptions of parentage set out in s. 69T of the Family Law Act in that he has acknowledged in writing to the Child Support Agency that he is the father of the child.

10. As Ms. Garwell, agent for the mother’s solicitor, indicated in her very well constructed and reasoned submissions that the presumption in s. 69T was rebuttable, and that given the contents of paragraphs 18-22 inclusive of the mother’s affidavit those presumptions in this matter had in fact been rebutted. However, on the material before me I am not prepared to find that the presumption has been rebutted. Even if I am incorrect in this finding, the applicant father would still have standing to bring and be heard on the application by means of s. 65C(c) of the Family Law Act.

Parentage Testing

11. The issue of paternity has been squarely raised. As I observed in an exchange between bench and bar table at Holbrook on 7 April 2010, it is very much in the interests of all concerned, particularly the child for this issue to be resolved. The mother seeks an order for parentage testing, and the father raises no objection. Accordingly, it is appropriate to make an order for parentage testing. The orders I have made in this regard in paragraph 2 of the orders follows verbatim the application of the respondent mother on this aspect of the case.

Chronology

12. The following is drawn from the affidavits filed by the parties, but it seems to me that there is no real dispute as to these matters:

10 January 1982 Respondent mother born

28 February 1986 Applicant father born

In 2004 Relationship between parties commenced

Mid 2006 Relationship between parties ceased, and parties separated.

14 July 2006 The child LRH born.

Early 2007 Parties recommenced cohabitation in the Albury/Wodonga area.
Early – mid 2008 Relationship once again breaks down and the parties separate
Mid March 2010. Mother moves with the child to Kurri Kurri
23 March 2010 Father’s application filed in Albury Local Court
24 March 2010. First return date before Albury Local Court
7 April 2010. Hearing on transfer to FMC and orders to be made on that transfer.

The applications of the parties

13. The father seeks final orders that the parties have equal shared parental responsibility, that the child live with him, that the child spend time with the mother as determined by the Court, that the father’s particulars be included on the child’s birth certificate and that the child’s name be changed to LRH-G. The father seeks interim orders of a procedural nature that are no longer of any significance (e.g. substituted service and proceeding ex parte), a Recovery Order, that he have sole parental responsibility for the child and that the child live with him.

14. The respondent mother in her Response seeks final orders that the child live with her, that she have sole parental responsibility and that the child spend time with the father as determined by the Court. The respondent mother did not put forward any alternative position so far as arrangements for the parties to spend time with the child in the event that the court acceded to the father’s application, or in circumstances where the child was ordered to be returned to the Albury/Wodonga area.

Method of Approach

15. The determination that I am asked to make in the matter before the Court is in my opinion very much in the nature of an interim hearing. Accordingly, the approach I will take is to follow the template provided by the Full Family Court in Goode –v- Goode [2006] Fam CA 1346 at [82]. Of course, the principal loadstar by which any court in making any parenting order, interim or otherwise, must be guided is section 60CA of the Family Law Act 1975 which provides:

“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.

16. I am also obliged to give proper regard and effect to the factors set out within section 60B of the Family Law Act 1975 and the provisions of section 69ZN of the Act.

17. Initially I am obliged to identify the competing proposals of the parties. I have already summarised the orders sought. Essentially, the father proposes that the child return to live in the Albury/Wodonga region and that either the child live with him and spend time with the mother, or alternatively, the child live with the mother and spend time with him. The father is prepared to facilitate what I regard as substantial time to the mother if she decides not to return to the Albury/Wodonga area.

18. The mother proposes that the child continue to live with her in the Hunter Valley area and that the father have time with the child as the court determines. It would have been easier to set out the mother’s position with more precision had she put forward an alternative position in the event that the court ordered the child to be returned to the Albury/Wodonga area.

19. Next, I am required to identify the issues in dispute in the matter. Initially, there is the dispute relating to parentage. I have dealt with this issue already within these reasons. The obvious and principle aspect of the dispute is where the child is to reside. It seems to me that in the context of this case, with whom the child resides, is a secondary consideration to the geographical location of where the child resides. The applicant father asserts the respondent mother has engaged in self-harm. The mother denies that allegation. There are also minor disputes about the length of time the parties were in a relationship. Those minor disputes do not, in my opinion, have any bearing on the decisions I have to make in this matter.

20. There are a number of uncontested or agreed facts. There does not seem to be any meaningful dispute on the dates of the chronology set out above within these reasons. It is agreed that the parties cohabited for a period between 2004 and 2006 in Cessnock. The child was conceived within the period of that cohabitation. The child was born on 14 July 2006. The relationship between the parties ended in or about mid 2006, i.e. during the latter stages of the pregnancy. In early 2007 the relationship was recommenced and at that stage the child was about 6 or 7 months old. It seems that there is no dispute that after the second separation the child spent a substantial amount of time with the father. On this aspect, the child has spent five days per fortnight with the father since she was 18 months old. The child is now 3 years and 8 months old. There is no suggestion in the evidence before me that the father is not capable of caring for the child. In fact the mother in her affidavit makes no complaint whatsoever about the care the child receives from the father. Nor is there any apparent complaint on the evidence before me as to the living arrangements.

21. The factors set out in section 60CC of the Family Law Act must also be considered. In this regard the primary considerations are the benefit to the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, from being exposed to abuse, neglect or family violence. The second aspect of the primary considerations can be dealt with in short order. There is no suggestion that the child is being exposed to physical or psychological harm or that she is neglected or subjected to or witness to family violence.

22. Clearly, there is very great benefit to the child having a meaningful relationship with both parents. With the child in Kurri Kurri the child is essentially deprived of that meaningful relationship with her father. There is nothing to suggest that the relationship the child had with her father up until the mother relocating to the Hunter Valley was anything other than very positive.

23. I turn now to the additional considerations within s. 60CC(3) of the Act. The child is simply too young to be able to express any meaningful view. There is nothing on which this court on the material available could come to any other conclusion other than the child has a good relationship with both parents.

24. The mother by her relocation and attitude in doing so has in my opinion indicated that she is not willing to facilitate and encourage a close and continuing relationship between the child and the applicant father. The mother has not suggested any regime by which the child would spend time with the father in the event that the court does not require the child to relocate to the Albury/Wodonga area. This in my opinion is a further manifestation of the respondent mother being unwilling to facilitate and encourage a close and continuing relationship between the child and the applicant father.

25. As a consequence of the mother’s relocation the child’s circumstances have changed considerably. The child is now a considerable distance from the father. This separation will in my opinion have a detrimental effect on the child’s relationship with the father in that she will not be able to have that regular and substantial time with the father. At the risk of repetition, there is nothing in the material before me that indicates that the relationship between the child and the applicant father is anything other than very positive.

26. Neither party is in a particularly good financial situation. There is obvious practical difficulty and expense in the father travelling to the Hunter Valley in order that the child can spend time with him. There is that same practical difficulty in the child travelling to the Albury/Wodonga area. The child is of tender years, and long distance car travel would be very tiring for the child and as a secondary consideration, also the parents. While the mother is in the Hunter Valley and the father in the Albury/Wodonga area those difficulties will continue. Those difficulties are of the mother’s making in that she has unilaterally relocated to the Hunter Valley with the child. Those difficulties have an obvious effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

27. On the material before me I am satisfied that both parents have the capacity to provide for the needs of the child, including the emotional and intellectual needs. Section 60CC(3)(g) need not be considered in the context of this case. Likewise, s. 60CC(3)(h) is not an issue in this matter.

28. The issue of the attitude to the child and the responsibilities of parenthood as demonstrated by both parents does not loom large, save and except for the attitude of the mother so far as the child spending time with the father is concerned. Family violence, likewise, is not a matter about which I have any particular concern. There is some passing reference to the police being called and arguments. However, there is nothing on the evidence, which would justify me making any finding adverse to either party on the issue of domestic violence.

29. I have little doubt that these reasons and the consequent orders I make on transfer to the FMC will not bring the dispute between these two parties to an end. Indeed, one of the reasons I have taken the trouble to reduce these reasons to writing is that the parties will have my decision in hard copy immediately in the event that any judicial or appellate review is sought.

30. Having considered the s. 60CC factors, I return to [82] of Goode –v- Goode. I am of the opinion that the presumption in s. 61DA of equal shared responsibility is not rebutted. The material before me would not entitle me to find that the presumption is rebutted.

31. However, an order that the child spend equal time with each parent is not practical, particularly in the event of the respondent mother either refusing or declining to return to live in the Albury/Wodonga area. In this regard I thank the advocates for referring me to the decision of the High Court in MRR –v- GR [2010] HCA 4. As French CJ, Gummow, Hayne, Kiefel & Bell JJ said at [15] of that decision:

“Section 65DAA(1)(b) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spend by the child with each parent. The presumption in s. 61DA(1) is not determinative of the questions under s. 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible”.

32. I am, however, very firmly of the opinion that it is in the best interests of the child to spend substantial time with both parents. I will return later to the issue of relocation. However, for the purposes of dealing with the issue of substantial time, the orders I will make at the conclusion of these reasons require the child to be returned to the Albury/Wodonga area, but they also allow for alternative scenarios of the mother returning to this area or remaining in the Hunter Valley. If the mother elects to remain in the Hunter Valley the applicant father proposed that the child spend one week in each month with the mother. In the absence of any proposal from the mother, this is the proposal I have chosen to include in the orders. In the event that the mother elects to return to the Albury/Wodonga area the child will live with her and spend time with the father in accordance with the arrangements in place prior to the relocation. In the event that the mother elects to remain in the Hunter Valley then the child will live with the father and spend approximately one week in four with the mother. While not ideal, at least on an interim basis, this is as about as good as I can do!

33. Although I have very limited experience as a Local Court Magistrate dealing with such matters, it is my understanding from the reported authorities that the Family Court of Australia, and indeed the Federal Magistrate’s Court is loathe to allow a situation to continue where through the unilateral relocation of one of the parents the child is deprived spending time with the other parent. In this regard Ms. Hill on behalf of the applicant referred me to a decision of Judicial Registrar Johnston in Ulmarra & Radley [2010] FamCA41. At [54]-[55] JR Johnston extracts the decisions of C & S [1998] Fam CA 66 and Morgan & Miles (2007) FLC 93-343 respectively. That last decision was a decision of Boland J. considering an appeal from the FMC. At [79] her Honour said:

In considering whether the child should live with the parent who proposes to relocate a court:

• Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
• Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
• Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
• If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
• In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
• When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
• Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
• Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance”.

34. I simply observe the decision of C & S was decided before the 2006 amendments to the Family Law Act. However, the general principle as set out at [54] of the decision of JR Johnson in Ulmarra –v- Radley is still sound in that:

“In my view it is clear that the interests of any child or children including the children here, are very much connected with any questions directly affecting those children, such as relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child in the circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand”.

35. Of course, I am not deciding the relocation issue, and I do not purport to do so. The authorities and principles to which I have referred are nevertheless of considerable importance in this matter in determining what is in the best interests of the child. It was argued on behalf of the mother that given the very real and substantial issue of paternity, the issue of the relocation should be given much lesser weight than might ordinarily be the case.

36. Ms. Garwell forcefully submitted that this court should hesitate before making any interim order. It was argued that there is a real issue relating to paternity. It was argued essentially that any interim order or change in present arrangements (i.e. the child living with the mother in the Hunter Valley) should not be considered until the fundamental issue of paternity is resolved. While I accept this would very much suit the mother, it should be tolerably plain by now that I am of the very firm opinion that it is in the best interests of the child to continue a meaningful relationship with the father.

37. It was put on behalf of the mother that on balance of convenience the matter should be transferred to the FMC at Newcastle. The mother and child (for the time being) live there. Again the spectre of paternity was raised. However, my orders will have the effect of the child returning to the Albury/Wodonga area. The mother may well choose to return to this area, at least until the FMC can finally resolve the issues in dispute. Given the child will be in the Albury/Wodonga area, the obvious need for the appointment of an Independent Children’s Lawyer and a Child Dispute Conference I am firmly of opinion that Albury is the more appropriate venue. I am independently aware that the FMC is sitting in Albury on 24 May 2010, and that this matter can be conveniently placed into the “Duty List” that week.

38. Further, it was put on behalf of the mother that s. 60CC(3)(c) works in favour of the mother in that the parties did cohabit and live for some time in the Hunter Valley area, and it was on that occasion the father that moved to the Albury/Wodonga area. This point was particularly well made. However, it does not in my opinion overcome the issue of the best interests of the child.

39. It was argued by the mother that there should be shared parental responsibility. It was conceded that equal shared time was not practical, and that equal shared time would not be in the best interests of the child.

40. Finally, it was put on behalf of the mother that she is now substantially “better off” where she is in that she has more remunerative employment, and she enjoys the support and assistance of her extended family. It was argued that the court should leave the child “where she is” until the substantial issues in dispute are resolved.

41. The reality is of course, that the child will be older by the time this litigation is finally decided by the FMC. By that time, the child will be involved and engrossed in her new surroundings, will be in day care or pre-school or even infants school. It is no doubt for these reasons why the Family Court has shown a reluctance to allow such a situation to continue.

42. For more abundant caution I will now go to s. 60B of the Family Law Act 1975. For the reasons I have given I am of the opinion that the orders I will make at the conclusion of these reasons will ensure, at least so far as I am able to, that the child will have the benefit of meaningful involvement in her life to the maximum extent consistent with her best interests. As I have already observed, there is no issue of neglect or violence in this matter. I am also satisfied that my orders will ensure that the child receives adequate and proper parenting, and that both parents fulfil their responsibilities. I am of the opinion that I have otherwise covered the matters set out in s. 60B(2) in these reasons.

43. The orders I make will appear hereunder, and I will produce them and make them available to the parties as a separate document. It would be entirely remiss of me not to conclude this matter without expressing my gratitude to the advocates who appeared and argued this matter. In particular, I am aware that Ms. Garwell appeared as agent, and given the appearances up until 7 April 2010 must have been instructed quite recently. She is to be thoroughly commended on her level of preparation and the presentation of argument.

44. For these reasons I make the following orders:

1. Time for the hearing of this matter be bridged;

2. (a) On or before 21 days from the date of these orders RLH born 10 January 1982 and TAG born 28 February 1986 each must attend a pathology collection service nominated by Genetic Technologies and provide such information and such bodily sample for parentage testing as Genetic Technologies reasonably requests; and
(b) RLH born 10 January 1982 must bring the child LRH born 14 July 2006 when she attends on Genetic Technologies and do all acts and things and sign all documents for the child to give such bodily sample for parentage testing as Genetic Technologies reasonably requests; and
(c) Each party will pay one half of the costs of the parentage testing procedure.


3. The parties have equal shared parental responsibility for the child LRH born 14 July 2006.

4. The mother return to child to Albury/Wodonga (which for the purposes of these orders is defined as the Local Government areas of the cities of Albury and Wodonga) no later than 6pm on Sunday 18 April 2010, and that the child thereafter reside in Albury/Wodonga except as otherwise provided for in these orders.

5. That thereafter the mother be restrained from removing the child LRH from Albury/Wodonga (which for the purposes of these orders is defined as the Local Government areas of the Albury and Wodonga cities) except with the written consent of the father, or as otherwise provided by these orders.

6. In the event that the mother returns to reside in Albury/Wodonga:

(a) The child LRH live with the mother; and
(b) The child spend time with the father from 4pm on Friday to 9am on Wednesday each alternate week commencing on Friday 23 April 2010;
(c) That the handover and collection point will be the Police Station Wodonga, unless otherwise agreed in writing between the parties; and
(d) Each party will contribute equally to the cost and participation in travel to and from their respective residence to the handover and collection point.

7. In the event that the mother refuses or declines to reside in Albury/Wodonga:
(a) The child will live with the father; and
(b) The child will spend time with the mother from 6pm on the second Saturday of each month, commencing on Saturday 8 May 2010 and continuing to 6pm the following Saturday;
(c) The father will deliver the child to the mother at the mother’s residence, unless otherwise agreed in writing between the parties on the second Saturday of each month and the mother will deliver to the child to the father’s residence unless otherwise agreed between the parties in writing on the third Saturday of each month; and
(d) Each party will contribute equally to the cost and participation in travel to and from their respective residences to the handover and collection point.

8. In the event the mother fails or refuses to comply with paragraph 4 of these orders or in the event that the mother removes the child from Albury/Wodonga, unless by prior written agreement of the father, or otherwise in accordance with these orders a Recovery Order issue directing to the Marshall of the Family Court of Australia and to all Officers of the Australian Federal Police and to all of the officers of the Police Forces or Services however described in each of the States and Territories of the Commonwealth of Australia requiring them to return the child LRH born 14 July 2006 to the father and for the purpose of that order stop and search any vehicle or aircraft ad to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found. It shall also be part of that Recovery Order that:

(a) The Mother be prohibited and restrained from again removing or taking possession of the child LRH born 14 July 2006; and
(b) In the event that the mother again removes or takes possession of the child she may be arrested without warrant.

9. In the event that a Recovery Order issue in accordance with paragraph 8 hereof:

(a) The father will have sole parental responsibility for the child; and
(b) The parts of these orders relating to the child spending time with the mother shall cease to have effect.


10. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

11. The matter be transferred to the Federal Magistrate’s Court at Albury for inclusion in the “Duty List” in the sittings of that Court at Albury commencing on Monday 24 May 2010.

12. No order as to costs of these Interim Proceedings.