Taybor and Anderson

[2009] FamCA 469

FAMILY COURT OF AUSTRALIA

TAYBOR & ANDERSON [2009] FamCA 469

FAMILY LAW – CHILD ABDUCTION – Flight risk
FAMILY LAW – CHILD ABUSE – Allegation – Sexual abuse
FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child
FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – CHILDREN – Evidence relating to child abuse

Goode & Goode (2006) FCL 93-286

APPLICANT: Mr Taybor

RESPONDENT: Ms Anderson

INDEPENDENT CHILDREN’S LAWYER: Mr Duncombe

FILE NUMBER: PAC 5282 of 2008

DATE DELIVERED: 15 April 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 15 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gersbach

SOLICITOR FOR THE APPLICANT: Hermann & Green

COUNSEL FOR THE RESPONDENT: Ms Adams

SOLICITOR FOR THE RESPONDENT: Hamish Cumming  Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Duncombe

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Dignan & Hanrahan Lawyers
DX 5113 Campbelltown

Orders

1. That all parenting orders in respect of the subject child … born … February 2005 be and are hereby discharged.

2. That pending further order the father, MR TAYBOR, have sole parental responsibility for the long term decisions concerning the welfare of the subject child.

3. That pending further order the said child live with the father.

4. That pending further order the parties each have the day to day responsibility for short term matters affecting the welfare of the child whilst the child is living or spending time with that parent.

5. That until further order MR TAYBOR and MS ANDERSON and his/her servants and agents are restrained from taking or sending or attempting to take or send THE CHILD, female, born … February 2005 from Australia.

6. The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

7. That the solicitors for the father shall immediately notify the Marshal and Australian Federal Police Family Law Team at Sydney of these orders by telephone and shall as soon as possible provide a copy of these Orders to the Marshal, Australia Federal Police and New South Wales Police. 

8. That until further order, the Court requests the Australia Federal Police place the name of the subject child, female, born … February 2005, on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

9. That the Registry Manager of the Parramatta Registry of the Family Court of Australia continue to hold the passports previously surrendered to  him being:

   a.   Australian Passport … issued to the mother;

   b.   Australian Passport … issued to the child;

   c.   Country B Passport … issued to the mother; and

   d.   Country B passport … issued to the child.

10. That leave be granted to all parties to photocopy the four passports presently held by the Registry Manager in this matter.

11. That the Registry Manager of the Parramatta Registry of the Family Court of Australia shall notify the Department of Immigration and Ethnic Affairs of these Orders, and the Department is requested to assist in ensuring that the father and/or the mother do not breach these injunctions.

12. That the mother spend time with the subject child each week from 9am on Monday to 6pm on Wednesday subject to the deposit of monies hereinafter provided for.  That time with the child shall be facilitated by the mother collecting the child from the father’s place of residence at the commencement of each such period and the mother shall make the child available to the father for collection at the conclusion of each such period at her residential address which shall be notified to the father in accordance with the immediately following orders.

13. Noted the mother presently resides at C and, according to her evidence today, intends to move into premises at the address …, M. 

14. That the mother shall not thereafter move from the address …, M, unless she has given to the father at least seven days prior to any proposed move, notice in writing of her intention to move with the child to another address and such notice shall provide the father with precise details of the  proposed premises.

15. That each party shall keep other advised of current telephone numbers and that is to include if possible both landline and mobile numbers.

16. That the mother shall not make any further complaint of sexual abuse in respect of the subject child to any person, authority, police service or department without first notifying the Independent Children’s Lawyer of her intention to do so.  In the event of such complaint being brought to the attention of the Independent Children’s Lawyer, he shall re-list the matter before this Court immediately.

17. That prior to the mother exercising time with the child in accordance with these Orders, she shall deposit with the Registry Manager of the Parramatta Registry of the Family Court of Australia the sum of $10,000 by way of bank cheque.

18. That in the event the subject child is not made available to the father in accordance with these orders at the conclusion of any period of time with the mother, then the father may apply to the Court on the next sitting day for release of those funds.  Upon the father establishing that the child has not been returned, the funds in their entirety shall forthwith be made available to the father.

19. That by consent, the mother be and is hereby restrained from;

    a.   disclosing or discussing with any journalist or reporter;

    b.   encouraging, authorising or allowing any other person to discuss with or disclose to any journalist or reporter; or

    c.   in any other way causing or allowing to be published;

    any information in relation to the complaint made to police, the police investigations into the complaint and/or any other matter or issue in these proceedings unless required by law to do so.

20. That this matter be set down for final hearing for four days commencing 31 August 2009 before Justice Collier.

21. That within fourteen days from this day the parties shall agree upon a person to be appointed pursuant to the provisions of ch.15 of the Family Law Rules to prepare a report for the assistance of the Court in this matter.  The parties shall agree upon a letter of instruction and unless otherwise agreed in writing, the parties shall each bear one half of the fees in respect of that report.

22. That no later than seven days after the expert report has been released to the parties and their legal representatives, the matter is to be re-listed for mention before Justice Collier.  On that occasion, and with the knowledge of the contents of the report, the Court will make further orders as necessary to have the matter proceed in the appropriate fashion in preparation for the final hearing listed on 31 August 2009.

23. That liberty be granted to either party or the Independent Children’s Lawyer to restore the matter to the list upon giving forty-eight hours notice. 

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5282 of 2008

MR TAYBOR

Applicant

And

MS ANDERSON

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The matter for determination before me this afternoon is where the parties’ child, who was born in February 2005 shall live and what time she shall spend with each parent until this matter can be brought on for final hearing, which final hearing shall commence on 31 August next.

2. The matter has a somewhat unusual history.  The husband was born in November 1958 and the wife in April 1974.  The subject child was born in February 2005.  There is considerable argument between the parties as to the state of their relationship from that time onwards.  Certainly it appears that by the middle of 2008 their relationship was indeed very rocky.  In any event, it is clear that on 17 July 2008 the wife left the premises where she and the husband were living together, leaving a note informing the husband that she was going to stay with friends.  That note is an annexure to the husband’s first affidavit.  The next day she sent a text message to the father revealing that she had indeed travelled or was travelling to Country B in Europe.  Proceedings then occurred pursuant to the Hague Convention for the Recovery of Children Abroad in the Country B courts.  As I understand it, on 19 November 2008 orders were made for the child to be returned to Australia within six weeks of that date.

3. On 28 November, the mother lodged an appeal and on 26 January that appeal was denied.  As I understand the wife’s affidavit material, on a date in early February 2009 she lodged a protest with the Country B authorities.  That was apparently refused and the wife then lodged an application with the Country B District Court seeking more time be given her to return to Australia.  As I understand her material, that last application or request was not to interfere with the order for her return but to give her more time in which to do so.  The husband has spoken of a stay application.  I am uncertain as to the precise state of affairs in Country B at that time.  However, it is then beyond contradiction that the father in Country B obtained possession of the child and returned with her to Australia.  The mother then followed the father and proceedings were again reactivated in this Court.  It will be remembered that I had made orders in November 2008 as to the parental rights of the father.

4. The matter was before me on a number of occasions and I made an order on 4 April that the mother spend some time with the child.  Apparently at the time that occurred, the mother made a report to police that the father had sexually abused the child in some fashion.  A form of investigation was undertaken, I understand firstly by police alone and subsequently by members of the Joint Investigation Response Team.  I understand that an attempt was made to interview the child and I understand that at this stage there has been no disclosure made to officers of the JIRT that enables them to proceed further with the matter.  Indeed, I am told by the Independent Children’s Lawyer, who made inquiries on this very aspect today, that there would be no further investigation by JIRT at this time.  Therefore the allegations, such as they are, are untested.

5. I record here, not by way of criticism but by way of observation, that it is most unfortunate that in light of allegations that there had been actual penetration, no medical examination was carried out in a timely fashion that may have supported or contradicted these allegations.  In any event, JIRT after spending considerable time in their initial investigations and interview with the child, returned the child to the father.

6. The situation now is that the father seeks that the mother spend very restricted time with the child.  The mother seeks the child be returned to her and spend time with the father.  It is perhaps of note that the mother’s response does indicate the time with the father should be unsupervised whereas the father in his material seeks that any order that be made for the mother to spend time with the child be supervised.

The Parties’ Material

1. The father’s material in this matter consists of his amended application filed in Court today, his affidavit sworn on 5 November 2008, an affidavit of the father of the same date, an affidavit of R Taybor of the same date, a further affidavit of the husband of 2 April, a further affidavit of the husband of 6 April and a further affidavit of the husband of 15 April filed in Court today.

2. The mother for her part relies upon her response, her initial affidavit in the proceedings sworn 1 April and her affidavit sworn 14 April.

The Hearing Before Me

1. I have heard submissions from each of Mr Gersbach for the father, Ms Adams for the mother and Mr Duncombe as the Independent Children’s Lawyer appointed recently to this matter. The father’s case is relatively straightforward.  It is in two parts.  One, that the mother presents, regardless of any assurance she can give the Court or any assurance the Court can take from its own orders, that there is an unacceptable risk that the mother may endeavour to flee and thereby defeat the orders of this Court.  He also says that the mother’s behaviour, particularly in putting the child up to making a false allegation, is such that it indicates that there is a risk with the child being with the mother. 

2. The mother asserts that the child should come back to her.  It is put on behalf of the mother that this is a situation where in all the circumstances she acknowledges she has made a mistake and says that with the sanctions that I can put in place to enable the husband to be satisfied, and the Court to be satisfied, that there is no more further risk of effective flight.  In those circumstances, the child should be returned to the mother and spend specified but unsupervised time with the father.

3. The Independent Children’s Lawyer has indicated to me that there seem to be some concerns as to the nature of the allegations made to police.  There seems to be some indication of coaching.  However, I am not able to form any concluded view on that subject.  The Independent Children’s Lawyer indicates that there should be some real and realistic time spent by the child with her mother until this matter can come on and be concluded.  He indicates that there are measures that the Court can take that will indeed enable the Court to be satisfied and to reassure the father that the flight risk is really no longer an apparent and realistic risk. 

4. The mother is prepared, I am informed, to deposit a sum of money that would be available to the father at least in part to defray any expenses were she again to be silly enough to try and remove herself from a known address let alone from the Commonwealth.

The Law to be Applied

1. The orders that I am being asked to make are parenting orders.  The Act prescribes a number of sections to which I must have regard.  The first of those is section 60B which sets out the objects of the Act and the principles underlying those objects which I do not propose to set out in full.  However, it is apparent that the Court is to ensure that children have the benefit of both parents having a meaningful relationship or involvement in their lives to the maximum extent consistent with their interests.  The following objects provide:- that children be protected from abuse, neglect or family violence, that they receive proper parenting; and the principles that underlie that are that children have a right to know and be cared for by both parents, that they have a right to spend time on a regular basis with both parents and other significant people. 

2. The next of the matters that I must turn to is section 60CA which simply indicates that in making a parenting order the best interests of the child are the paramount consideration.  Section 60CC(2) then deals with what are described as primary considerations not dissimilar in their terms from the objects, that is the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. The primary considerations, as to the objects, posit a balancing exercise - meaningful relationship, need to protect.  There are additional considerations which I will touch upon briefly.

3. There appear to be no views expressed by the child that I can take as reliably put before me. 

4. The nature of the relationship of the child with each parent.  It is clear on what I have heard that the mother was the more significant caregiver, that is as between she and the father, until July of last year when she left Australia.  Clearly, during the time she remained in Country B, from her arrival until the time the father brought the child back to Australia, the father had no participation in the child’s life and the mother clearly was the sole carer at that stage.  I am satisfied, however, that the father has a relationship with the child which is such that it brings the child comfort and in which the child is safe.

5. The willingness and ability of each of the child’s parents to facilitate the relationship of the child with the other parent is in this case something that will need be examined more closely.  However, it must be apparent that in the actions the mother took in going to Country B and remaining there even after decisions had been made against her, that there was a determination on her part to exclude the father from the child’s life.  The father, since the return to Australia, has indicated the mother should have time with the child but says because of his fears that she will abscond with the child again, that that time must be supervised and monitored.  To my mind, therefore, the mother is to be seen as having a determination to exclude the father from the child’s life that does not occur so far as the father is concerned in his attitude to the mother.

6. The likely effect of any change in the child’s circumstances.  The father says in effect that things should continue as they are until 31 August, with the mother only having minimal and supervised time with the child.  The mother says that the child should come to her and spend several days a week with the father.  The mother’s application therefore involves clearly a greater change.  If the child is to spend any time with the mother, it will be a change from the situation that has existed since the father returned with the child from Country B.  Of course before that for the months the mother spent in Country B with the child, the father was excluded and as I have already said I am satisfied that prior to the mother leaving Australia as between she and the father, she had more of the care of the child.  I am satisfied that if a change were made for the child to spend some time with the mother until this matter can be concluded, it is a change with which the child could cope.  Indeed, on the evidence I have heard, it seems to me that whatever else has occurred, the child is happy to see her mother and spend time with her.

7. The practical difficulty and expense of the child spending time and communicating.  If I make orders for the child to spend time with the mother, I will endeavour to make orders that the father and the mother cooperate in what is to be done so far as transporting the child between one residence and the other is concerned.

8. The capacity of each of the parents.  Each of the parents has established that they have a capacity to care for the child, indeed to the exclusion of the other parent.  To my mind, whilst the father’s assumed care of the child is far more recent, I am not in any way able to say that his care is such that the mother stands in a much better position than he does.  I must clearly recognise the mother’s capacity to care for the child as she did up to July 2008 and whilst in Country B. 

9. Subsections G and H to my mind have no particular application. 

10. Subsection I, the attitude to the child and the responsibilities of parenthood, again are something that will need be investigated in a final hearing.  However, it seems to me that the mother does not obtain any credit for taking the child from Australia and thereby excluding the father from the child’s life for the period of time that she remained in Country B.

11. Family violence is something that I am not able to make findings on.  The mother seems to make some allegations, as it seems the child has made assertions that there has been abuse at the hands of her father to her mother and perhaps a police officer, but certainly not to the police officers and DOCS officers of the relevant JIRT investigating those inquiries.

1. In this case I am satisfied that those are the additional considerations that I must have regard to.  They still lead me back to the balancing exercise of the meaningful relationship and the need to protect.  In this case I am satisfied that it is necessary that the child spend some time with the mother but, in the context of orders that I propose to make, to protect the child as much as anything else from the mother again endeavouring to remove her from the proper exercise of jurisdiction by this Court.

2. I must next move, according to the sections of the Act, as to whether or not parents have fulfilled parental responsibilities and I do not propose to repeat what I have already said. 

3. Section 61DA(1) deals with the presumption of equal shared parental responsibility.  Clearly that is a situation that the legislators have considered to be necessary and appropriate.  The presumption for equal shared parental responsibility does not apply where there has been family violence.  That is not a matter for my consideration in this present inquiry.  However, the presumption can be rebutted by evidence that indicates that it is in the best interests of the child not to have the parents share equal parental responsibility.  In this case, one of my concerns is that if the mother were to have equal shared parental responsibility and if she were minded to endeavour to remove the child, such conferral of equal shared responsibility may give her an advantage in this regard.  I am conscious that the orders that I am making are only interim orders.  However I am satisfied that the presumption in this case is rebutted.  Accordingly, it is my intention, in the circumstances of this case, when framing the orders that I propose to make to order that until further order the father have sole parental responsibility in respect of the subject child.

4. I must then move to consider equal or significant and substantial time.  The conferring of equal shared parental responsibility would be a trigger for those sections.  However, their Honours of the Full Court in Goode v Goode[1] have made it clear that it is still a matter of considering what is in the child’s best interests to consider equal or significant and substantial time.  In the circumstances of this case I am not satisfied that equal shared time would be appropriate.  I am satisfied that in the circumstances of this case, and particularly having made an order for sole parental responsibility in favour of the father, that it is appropriate that the child live basically with the father and spend time with the mother.

   [1](2006) FCL 93-286

Discussion

1. In all the circumstances of this case, I have come to the conclusion that it is appropriate, as I say, for the child to live with the father and spend time with the mother.  I consider that that appropriate time with the mother would be from 9 a.m. Monday until 6 p.m. on Wednesday in each week. 

2. I propose to order that on those occasions the mother is to collect the child from the father’s place of residence at the commencement of each period and the father is to collect the child from the mother’s place of residence at the conclusion of each such period.

3. I propose to discharge all the existing orders and I propose to make further orders in respect of the PACE and watchlist orders required to ensure that the child does not leave Australia.  However, I propose to go further than that.  I propose to order that the mother not leave her current address which, for the purpose of these orders, will be either … at H or the address in M without giving the father seven days’ notice of her intention to do so.  That will enable the father to bring the matter back to Court because I propose to give a general liberty to apply on 48 hours notice. 

4. I propose also to order that the mother is to deposit with the Registry Manager the sum of $10,000 by bank cheque and that in the event that the child is not made available to the father in accordance with these orders on any occasion, the matter can be brought back to Court the next day and upon the father establishing the child has not been returned the entirety of those funds I would propose would be paid to him to enable him to take such further steps as were necessary.

5. There is one further order that I have considered making and propose to make and that is that the mother shall not make any further complaints of sexual abuse affecting the child to police, the Department of Community Services or any other authority without first bringing such complaints to the attention of the Independent Children’s Lawyer.  The Independent Children’s Lawyer will then bring the matter back before this Court on an immediate relisting basis.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier.

Associate: 

Date:  28 April 2009