Tothill and Crowther

[2016] FamCA 167

FAMILY COURT OF AUSTRALIA

TOTHILL & CROWTHER [2016] FamCA 167

FAMILY LAW – CHILDREN – interim orders – best interests of the child – where there are orders for the child to spend time with the father – where the mother has relocated with the child without the permission of the father or the Court – where the mother alleges the child would be at risk in the unsupervised care of the father – where the father seeks an order that the mother be required to return – where the Court is not satisfied that there is a need to protect the child from any harm -  where consideration is given to the need to ensure that the child has a meaningful relationship with both parents – where orders are made for the mother to return with the child.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT:	Mr Tothill
RESPONDENT:	Ms Crowther

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4457 of 2013

DATE DELIVERED: 11 March 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Nicholls Gervasi & Co

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHIL.DREN’S LAWYER	Mr Kent
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission of SA

Orders

UNTIL FURTHER ORDER PENDING THE FINAL HEARING OF THE MATTER IT IS ORDERED THAT

1. Paragraph 4 of order 9 November 2015 is suspended until Sunday 3 April 2016.

2. The mother on or before 3 April 2016 in writing provide the father’s solicitors with full particulars of the school at which she proposes the child B (“the child”) born on … 2011 will attend in D Town.

3. The mother has the sole parental responsibility for choosing the child’s school in D Town.

4. The mother to inform the Independent Children’s Lawyer in writing prior to 3 April 2016 the residential address in D Town of herself and the child.

5. The Independent Children’s Lawyer is not required to disclose that address to the father or anyone seeking that information without seeking further order of the Court.

6. The mother return the child to the D Town area or to a location closer to E Town on or before Sunday 3 April 2016.

7. The mother is restrained and an injunction is granted restraining her from changing the principal place of residence of the child from the D Town area other than to a location closer to E Town.

IT IS FURTHER ORDERED THAT

1. The contravention application filed by the father is referred to the Registrar for allocation of a date for hearing to be advised allowing one [1] day UPON NOTING that the Honourable Justice Berman is disqualified from hearing the matter.

2. The father’s Application in a Case filed on 10 March 2016 is dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4457 of 2013

Mr Tothill

Applicant

And

Ms Crowther

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which concerns the Court determining what is in the best interests of the child, B (“the child”) who was born in 2011, therefore she has just recently turned five.  It is of concern to the Court that the litigation between the parents has been outstanding for a considerable period of time and is not yet resolved.  It is also of concern to the Court that the submissions put to the Court in both affidavit form and in oral submissions by the mother appear to focus on the anger and attitude of the parent towards the other parent rather than to focus upon what is in the best interests of the child.

2. The proceedings had been referred to this Court after being dealt with in the Federal Circuit Court.  As a result of hearings, orders were made in the Federal Circuit Court.  At one time in 2013, it was noted that the mother had indicated that she had no intention at that time of leaving D Town and therefore it was not necessary to make the orders that the father was seeking to restrain her from doing so. 

3. The matter has been before the Court on several occasions and, most recently, on 9 November 2015, the matter was before me when Mr Anderson represented the father, Ms Pyke QC represented the mother and Ms Du Barry represented the Independent Children’s Lawyer.

4. Significant argument was heard on that occasion about the interim orders that could be made pending the trial.  Those orders provided that, pending the final hearing of the matter or further application by any party, it was ordered that the child live with the mother and spend time with the father in the presence of the mother in D Town on various dates and then further times that the father spend with the child in Adelaide on various dates and at paragraph 4:

   Thereafter, each alternate Sunday commencing 17 January 2016 from 9 am until 5 pm unsupervised in [D Town] with the child to be collected from and returned to the [D Town] Post Office.

5. The matter was then referred to the list of matters to await trial allocation and possible directions being indicated for a family consultant’s report to be prepared.  Other procedural orders were made.  They were the orders that were in place after considerable argument and consideration of the materials before the Court.

6. On 3 February 2016, the matter came on before me when Mr Anderson again appeared for the father and Ms Du Barry for the Independent Children’s Lawyer.  Ms Ferdinandy, the solicitor on record for the mother, appeared and was given leave to withdraw from the proceedings.  The Court made orders that required the mother to notify the Independent Children’s Lawyer of the residential address of the child, and if that was not done very quickly, then orders were made for the child to be recovered by the Federal Police.

7. When the matter came on before me again on 11 February 2016 (being the date upon which the child had been brought to the Court as a result of the recovery order due to the alleged failure of the mother to comply with the previous orders for providing her location), orders were made on that occasion for the father to spend time with the child during the period of the adjournment in Adelaide and in F Town. 

8. The mother has since filed material which alleges that, on Saturday 13 February 2016, the child was sick and therefore the father did not spend time with the child on that date.

9. On the occasion of 27 February 2016 at the handover at F Town Police Station, the father alleges that the mother appeared but the child was not handed over.  The mother asserts that the child did not want to spend time with the father on that occasion. 

10. I have received a long affidavit of the mother which is filed on 8 March 2016 with annexures of communication between the parties and other material.  In that affidavit, the mother sets out in some detail what she alleges to be the child’s reaction to the intervention of the police.  She has made submissions to the Court that the child has been traumatised by the events of 11 February 2016 which relate to the recovery order.

11. Much of the submissions of the mother in the affidavit and in her oral submissions related to her concern about the Federal Police’s behaviour on that occasion, the impact that had upon the child, the failure of the solicitor for the father to behave in a manner which she considers appropriate, and criticisms of the Court making the orders for the recovery of the child in the circumstances. 

12. The Court accepts, even before orders are made for the recovery of a child that such events are likely to impact upon both the mother and her family but, most significantly, are likely to impact upon a child.  Those orders are not made readily balancing off the factors that need to be considered but taking into account as the primary consideration the best interests of the child.

13. I therefore accept that the child may well have been traumatised and the mother may have been upset by the events surrounding the recovery order but I am not attributing the blame for that to the father or the mother at this stage.  That will be a matter which will have to be determined when all of the evidence has been tested at the final hearing of this matter, which is yet to be allocated a date.  What I need to determine on this interim basis, as the authority of Goode & Goode (2006) FLC 93-286 sets out, is what interim orders would be in the best interest of the child, taking into account all of the factors in s 60CC, but considering the primary factors, being the need to consider the benefit to the child of having a meaningful relationship with the father and, at the same time, placing the most emphasis upon the need to protect the child.

14. In this case, the mother has been asserting that the child would be at risk in the unsupervised care of the father but, at the same time, the mother has, from time to time, proposed that she would negotiate with the father to make some arrangements which were suitable to both of the parties.  Taking into account the allegations that the mother has made and have not been tested and taking into account the significant argument which was heard in November last year which provided for the father’s time with the child to be unsupervised from January this year, I am not satisfied that the mother has established, to a sufficient basis on this interim hearing, that there is a need to protect the child from any harm by preventing the father from having any unsupervised time with the child.

15. I am, however, concerned about the mother’s ability to cope with the orders of this Court and the child’s reaction to the mother’s inability to obey the Court orders which create much more drastic circumstances if the mother is not able to comply with orders of the Court.  When I say “drastic circumstances”, I refer to the capacity of the Court in contravention proceedings to consider imprisonment, bonds, community service orders and fines as well as changing arrangements for the care of the child.  Those matters would need to be decided after the evidence has been heard and tested.

16. However, considering at this interim stage what is in the best needs of the child, I take into account that the mother, without the permission of the Court, has moved the child such a distance that it will, on the face of it, be difficult for her to comply with the existing orders of November 2016.  The travel from Adelaide to D Town would be unreasonable, considering the mother’s unilateral decision without the permission of the father to move from D Town to Adelaide.

17. I accept that any arrangements made for the child and the child’s siblings and the mother to be required to return to D Town would involve further disruption but there is nothing before the Court at this interim basis which establishes the need for the mother to move without the father’s consent and therefore unilaterally attempt to override the order of this Court which require for the child to spend regular time with the father.  It is significant in this matter that there is a benefit to the child of having a meaningful relationship with the father and that the orders made in November 2015 provide for that.

18. I accept, however, that the mother has made arrangements unilaterally to move to Adelaide and that the events of 11 February 2016 involving the recovery order have had an impact upon her and the child.  I therefore propose that the orders of 9 November 2015, paragraph 4, be suspended for a short period to enable the mother to overcome her difficulties, which appear to be emotionally impacting upon her, and to allow her to make appropriate arrangements to move her residence back to D Town.

19. I have already referred the contravention application to a date to be advised and the final orders matter has already been referred.  The orders which the mother sought referred to the mother remaining at an undisclosed address and she has expressed concern that the father has never bothered to ask about the address at which the child was living in at D Town and the school which she was attending.

20. The mother is complaining, after I have made the orders, about the financial consequences.  I take into account that the mother has made the decisions, notwithstanding the existing orders of the Court, and that she will have to seek assistance to enable her to comply with the orders of the Court.

21. I have determined that the orders are in the child’s best interest, taking into account the need to ensure that the child has a meaningful relationship with both of the child’s parents and that the arrangements being made by one parent to reduce the time the other parent has an ability to spend time with the child is a significant factor, particularly when it is done without consultation with the other parent.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 March 2016.

Associate: 

Date:  21 March 2016