VEDDER & COLLISS

[2014] FCCA 2682

FEDERAL CIRCUIT COURT OF AUSTRALIA

VEDDER & COLLISS [2014] FCCA 2682

Catchwords:
FAMILY LAW – Children – parenting – relocation – parenting orders – interim orders – unilateral relocation of children’s residence by mother – parental responsibility – equal shared parental responsibility – best interests of the children – two children aged 5 years and 3 years.

PRACTICE AND PROCEDURE – Affidavits – leave refused to rely on affidavit filed out of time –  need to comply with directions made by Court in preparation for hearing – “outsourcing” of affidavits – undesirability of allowing deponents to prepare their own affidavits – “cheer squad affidavits” – observations on the lack of utility of “cheer squad affidavits.”

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA

Cases cited:
Baines & Crabal [2014] FCCA 868
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Harbrow & Harbrow [2010] FMCAfam 834
In the Marriage of Jaeger (1994) 18 Fam LR 126; FLC 92-492

Applicant: MR VEDDER

Respondent: MS COLLISS

File Number: SYC 4788 of 2014

Judgment of: Judge Scarlett

Hearing date: 14 November 2014

Date of Last Submission: 14 November 2014

Delivered at: Sydney

Delivered on: 19 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Blackah

Solicitors for the Applicant: Miller Goddard

Counsel for the Respondents: Ms Nessworthy (as agent)

Solicitors for the Respondents: Stanfords Solicitors & Conveyancers

Counsel for the Independent Children's Lawyer: Ms Webber

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011.

2. The children X and Y are to live with the Mother.

3. Within one (1) month of the date of these Orders the Mother is to return the children X and Y to reside in the town of (omitted) or within fifteen (15) kilometres of the (omitted) Court House (hereinafter referred to as “the (omitted) Area”).

4. Until such time as the children X and Y return to live in the (omitted) Area they are to spend time with the Father as follows:

   (a)From 12:00 noon on Friday 21 November 2014 until 12:00 noon on Sunday 23 November 2014 unless otherwise agreed between the parties;

   (b)From 12:00 on Friday 5 December 2014 until 12:00 noon on Sunday 7 December 2014 unless otherwise agreed between the parties;

   (c)Upon the Father giving the Mother not less than 48 hours’ notice in writing and on condition that the time take place in the Sydney metropolitan area, the children are to spend time with the Father during the day on either a Tuesday or a Wednesday or a Thursday provided that the children are not attending pre-school on that day during such times as may be agreed or failing agreement from 11:00am until 3:00pm noting that this provision does not apply to Christmas Day.

5. Once the children X and Y have returned to live in the (omitted) Area in accordance with Order (3) above they are to spend time with the Father as follows:

   (a)Each Tuesday from after pre-school or school or if either of the children is not attending pre-school or school on that day then from 3:00pm until the commencement of pre-school or school on the Wednesday morning or if either of the children is not attending pre-school or school on that day then until 9:00am; and

   (b)Each alternate weekend from after pre-school or school on Friday or if either of the children is not attending pre-school or school on that day from 3:00pm until the commencement of pre-school or school on the following Monday morning or if either of the children is not attending pre-school or school on that day then until 9:00am PROVIDED THAT if the Monday following the weekend is a public holiday then until 5:00pm on the Monday;

   (c)From 2:00pm on Christmas Day until 5:00 pm on Boxing Day 26 December 2014;

   (d)On each of the children’s birthdays and on the Father’s birthday from immediately after pre-school or school until 6:00pm;

   (e)For the first week of each of the Autumn, Winter and Spring school holidays in 2015 commencing on the Saturday immediately after the end of the school term; and

   (f)On the weekend that includes Fathers’ Day.

6. Notwithstanding the provisions of Order (5) above the children will not spend time with the Father on either the Mother’s birthday or on Mothers’ Day but will spend time with the Mother on those days.

7. Changeover between the parties where the children go from the care of one party to the other in accordance with these orders will take place as follows:

   (a)where changeover is to take place at a pre-school or school attended by one or other of the children then at the pre-school or school; or

   (b)on all other occasions at the McDonalds Family Restaurant in (omitted).

8. IN THE EVENT that the Mother has not returned to live in the (omitted) Area within one month of the date of these orders as provided by Order (3) above then the children X and Y are to live with the Father.

9. UNTIL FURTHER ORDER each of the Father MR VEDDER born (omitted) 1979 and the Mother MS COLLISS born (omitted) 1985, and their servants or agents are restrained from removing or attempting to remove or causing or permitting the removal of the children X born (omitted) 2009 and Y born (omitted) 2011 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the children X and Y on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the names of the children on the Family Law Watch List until the Court orders the removal of the children’s names or 19 November 2016 whichever shall first occur.

10. The parties are to attend upon a Family Consultant at a time and place directed by the Director of Child Dispute Services at this Registry for the purpose of preparation of a Family Report in accordance with the provisions of section 62G of the Family Law Act 1975.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4788 of 2014

MR VEDDER

Applicant

And

MS COLLISS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of two children, X, who was born on (omitted) 2009 and Y, who was born on (omitted) 2011, for Orders that the children should live with him and be restrained from leaving the Commonwealth of Australia. In his Initiating Application he seeks interim orders in essentially the same terms.

2. In his affidavit of 1^st August 2014 the Father expresses concern that the Mother may remove the two children from Australia and take them to the (country omitted), which is her country of origin. He deposed that the Mother has not become an Australian citizen and retains a (country omitted) passport.

3. He deposed that when he returned home from work on 25^th July 2014 he found that the Mother had left and had taken the children with her. The reason for his fear that the Mother may take the children out of Australia stems from the fact that the parties had planned to take the two children to the (country omitted) to spend time with the Mother’s family for about six weeks from 25 November 2014 and they had booked airline tickets for the four of them to travel there.

4. In her Response, filed on 27^th October 2014, the Mother sought Orders that the children should live with her and spend time with the Father. She deposed in her affidavit of 7^th November 2014 that she had been obliged to leave the marriage because of the controlling behaviour of the Father and the denigrating behaviour of the Father’s stepfather.

5. The Mother has moved to (omitted), in the Sydney metropolitan area, and obtained rental accommodation.

Procedural History

1. The parties attended Court on the first return date of the Application, and were directed to attend a Child Dispute Conference that same day. The Family Consultant reported that the parties had agreed that the children should be spending time with each of them. The Family Consultant recommended that an Independent Children’s Lawyer should be appointed for the children. That order was made that same day. The parties also entered into some interim parenting orders by consent.

2. The Father’s Application was listed for an interim hearing on 14^th November 2014. The usual directions were made for an interim hearing, that the parties were to rely on one affidavit per witness and all affidavits should be filed and served a week before the hearing.   

Evidence and Submissions

1. The newly-appointed Independent Children’s Lawyer, Ms Webber, attended Court. She had prepared a Minute of Proposed Interim Orders which she handed up to the Court and provided copies to the Applicant’s and the Respondent’s lawyers.

2. The Father’s Case Outline stated that the father relied on his Initiating Application and the following affidavits:

   a)His affidavit of 1^st August 2014;

   b)His “updating” affidavit of 22^nd October 2014;

   c)The affidavit of Ms N of 13^th October 2014;

   d)The affidavit of Ms R of 10^th October 2014;

   e)The affidavit of Ms A of 8^th October 2014;

   f)The affidavit of Mr M of 8^th October 2014;

   g)The affidavit of service of 20^th August 2014;[1]

   h)The affidavit of Ms D of 22^nd October 2014;

   i)The affidavit of Ms G of 23^rd  October 2014; and

   j)The affidavit of Ms C of 23^rd October 2014.

   [1] Service would hardly have been an issue, as the Respondent had attended Court on the first return date and had filed a Response and an affidavit

3. The mother, by her Case Outline, relied on her Response filed on 27^th October 2014 and the following affidavits:

   a)The affidavit of the mother of 7^th November 2014; and

   b)The affidavit of Ms L of 3^rd November 2014.

4. The Father also sought to rely on a further affidavit to which he had deposed on 12^th November 2014. The Mother’s solicitor objected to that affidavit because:

   a)it was out of time; and

   b)a copy had not been served on her.

5. The Independent Children’s Lawyer told the Court that she had received an unsealed copy of the affidavit but, in her opinion, it did not take the Father’s case any further. I read the affidavit in order to decide whether it should be admitted or not and formed the view that the contents were not of such importance that the affidavit should be permitted to be read (see In the Marriage of Jaeger[2] per Fogarty J at 131). I was satisfied that the Independent Children’s Lawyer was correct in her assessment of the value of the affidavit and duly rejected it.

   [2] (1994) 18 Fam LR 126; FLC 92-492

6. The Independent Children’s Lawyer submitted that the Mother had unilaterally relocated the children’s residence from (omitted) and that the children should return to live in the (omitted) area. They should reside with their mother, if she chose to return to the (omitted) area, but if she did not, then the children should live with the Father. She stressed the importance to the children of a stable environment, especially as the older child was due to start school at the commencement of the first school term in 2015.

7. It was submitted for the Father that he had the capacity to care for the children on a full time basis, as he was self-employed.

8. The Mother’s solicitor submitted that her client would largely follow the recommendations of the Independent Children’s Lawyer. The Mother would not start working until the older child commenced school in 2015.

The Parties’ Proposals

1. The Independent Children’s Lawyer, in her Minute of Orders, proposed that (in summary):

   a)the children should live with the Mother in (omitted) or within 10 kilometres of the (omitted) shopping centre;

   b)the children should spend time with their father every Tuesday night and on alternate weekends;

   c)the children should be returned to live in (omitted) within 4 weeks and, if the Mother did not return them within that time, the children should live with their father; and

   d)other ancillary orders.

2. The Mother changed her position considerably, and proposed that she would follow the orders suggested by the Independent Children’s Lawyer, except that:

   a)she would return to (omitted) in the last week of January;

   b)until she did, the Father should spend time with the children on alternate weekends, from Thursday to Sunday; and

   c)changeover would be at the McDonald’s Restaurant at (omitted).

3. The Father also changed his position considerably during the hearing. His counsel produced a handwritten set of minutes, albeit rather late in the day, in which the father proposed two alternatives. First, if the children return to (omitted) and the Mother did not, then the children would live with him and spend time with their mother for five nights per fortnight until the older child commenced school and then on alternate weekends and half the school holidays.

4. If the Mother were to return with the children, the Father proposed that the children would spend equal time with each parent, with changeover taking place at 5:00pm each Sunday.

Agreed or uncontested relevant facts

1. The parties were married on (omitted) 2007 and separated on 25^th July 2014, when the Mother left the matrimonial home, taking the children with her. The children remained living with the Mother in the (omitted) area. The older child, X, is due to commence school at the commencement of the school year in 2015.

The Relevant law in regard to parenting applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial or significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, insofar as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court in Goode & Goode[3] requires the Court at first instance to consider the matters in s.60CC that are relevant, and, if possible, make findings about them, noting that:

   (in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).[4]

   [3] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [4] (2006) 36 Fam LR 422 at 445 [82]

2. In this case, the issues really concern the two primary considerations in subsection 60CC(2), being on the one hand the benefit to the child of having a meaningful relationship with both parents and, on the other, the need to protect the child (or children, in this case) from physical or psychological harm from abuse, neglect or family violence. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.

3. The Mother, in her affidavit of 7^th November 2014, sets out a number of paragraph under the heading “Family Violence”. Those allegations relate to a claim that the father controlled the Mother financially in a number of ways, particularly by restricting her access to funds. There is no allegation of any physical violence against the Father (see s.60CC(3)(j)), and there is no evidence of any family violence order, by way of an Apprehended Domestic Violence Order, ever having been in force (s.60CC(3)(k)).

4. The Mother makes allegations about the Father’s father in law, Ms N, having made derogatory comments about her mother. She also expressed a fear that he may have been stalking her.

5. Curiously, at paragraph [72] of her affidavit, the Mother states:

   I seek that the father only spend supervised time with the children until he completes a course such as ‘Parenting After Separation’ to ensure that he is able to look after the children on his own.

6. Despite the fact that this paragraph appears under the heading “Orders Sought” in her affidavit, the mother has not sought an order for the Father’s time with the children to be supervised in her Response filed on 27^th October 2014 or on any subsequent occasion.

7. I am not satisfied that there is any evidence that there is a risk of either physical or psychological harm to the children from abuse, neglect or family violence.

8. The Court must consider the benefit to the children of having a meaningful relationship with both of their parents. By removing the children from the matrimonial home and moving out of (omitted) to a southern suburb of Sydney, the mother has effectively deprived the children of the benefit of spending time with their father. This appears to be a reason to require the children to return to the (omitted) area, although not necessarily to the former matrimonial home.

9. There is no evidence of any views expressed by the children and, in any event, they are too young for their views to be given any weight.

10. The evidence would suggest that the children have positive relationships with their parents and with their grandmothers, both of whom are on affidavit.  

11. If the children remain living in the (omitted) area, the Father will have difficulty and expense in spending time with them.

Equal shared parental responsibility and section 61DA of the Act

1. The Father does not seek any specific order in his counsel’s handwritten minutes about parental responsibility, nor does the Independent Children’s Lawyer. The mother seeks an order in her Response that the parties should have equal shared parental responsibility for the children.

2. Subsection 61DA(3) of the Act provides that when the Court is making an interim order, the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child will apply, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied.

3. There does not appear to be any reason why it would not be appropriate for the presumption to be applied, and the Mother in any event seeks such an order. In any event, s.61DB provides that, if there is an interim parenting order in relation to a child, the Court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order. Thus, at a final hearing, parental responsibility is decided ab initio.

4. I propose to order that the parties will have equal shared parental responsibility for the children.

Section 65DAA of the Family Law Act

1. Where a court makes an order that a child’s parents should have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider whether the child spending equal time with each of the child’s parents would be both in the child’s best interests and reasonably practicable.

2. The Father seeks an order providing that, if the Mother should return to live in (omitted) with the children, then the children should spend equal time with each parent on a week about basis. This proposal is opposed by the Mother and not supported by the Independent Children’s Lawyer. The Independent Children’s Lawyer submitted that the children require some stability and the chance to settle into a new routine, certainly before the older child, X, commences school in January.

1. The Independent Children’s Lawyer referred the Court to the Child Dispute Memorandum prepared by the Family Consultant on 27^th October 2014 in support of the proposal that the children should return to (omitted) with their mother and reside with her, whilst spending time with their father.

2. In my view, the commencement of an equal time routine with each parent once the children return to the (omitted) area, and I am very clear in my view that they should return to the familiar surroundings of (omitted), would not be in their best interests. It would be disruptive and another change for them to accommodate.

3. I am also of the view that such an arrangement would not be reasonably practicable, even though the parents will both be living in the (omitted) area, but because of the other considerations set out in subsection 65DAA(5), which must be taken into account when the Court is considering whether the arrangement is reasonably practicable.

4. I have in mind paragraphs (b), (c) and (d) of s.65DAA(5), which require the Court to have regard to:

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child…

5. If the Court does not make an order for the child to spend equal time with each parent, the Court is required by s.65DAA(2) to consider whether spending substantial and significant time with each of the parents would be both in the child’s best interests and reasonably practicable. I propose to make orders that will come close to the concept of substantial and significant time with each parent.

Orders that are in the children’s best interests

1. The Family Consultant, Ms B, refers in the Memorandum to the need for the restoration of some degree of stability to these children’s lives:

   In the past three months it would seem that X and Y have been required to deal with many significant changes and events: their parents’ separation; moving houses; changes in their day to day care arrangements; a change in day-care for X and starting day-care for Y; their father’s absence in their day to day life; the absence of other significant others such as paternal grandparents. This is a lot for any child to deal with. It is unlikely that either child, due to their ages and cognitive development can comprehend or anticipate the emotional impact on them of significant changes to their living and education circumstances.

2. Further in the Memorandum, the Family Consultant states:

   It would be very important that, irrespective of where, on an interim basis, the children live that there is the immediate establishment of a parenting arrangement that includes regular and predictable time with each of their parents.

3. Equal time between each parent would not be in the children’s best interests, especially for Y, who is still only three years old. It is well established that young children need to spend time with each parent at frequent intervals to build up and develop an attachment. For a child to go for a week without seeing one or other parent is too long, in my view.

4. It is important to note that the children did not spend any time with their father for three months after their mother left the matrimonial home, which would not have assisted their relationship with their father. This is another reason why the children should return to the (omitted) area in the near future and recommence seeing their father on a regular basis.

5. It is too late for the Mother to contemplate returning the children to (omitted) in late January, when the elder child, X, is due to start school. He needs to be back before Christmas and settled into a routine so that he can approach the start of school from the basis of an established routine. Starting school is a milestone in a child’s life and it can be a daunting prospect for a child.

6. It is for all of those reasons that I propose to make orders along the lines of those proposed by the Independent Children’s Lawyer, with some variations. The Mother will be given a bit more leeway in establishing a new residence for herself. I consider that accommodation within 15 kilometres of the (omitted) courthouse will be reasonable.

7. It is important that the children are back in the (omitted) area and settled into a routine before Christmas.

The Conduct of Interim Hearings

1. Whilst the Independent Children’s Lawyer acted speedily and efficiently in preparing for the hearing, the same cannot be said for the lawyers for the parties.

2. The Court made directions on 27^th October 2014 for the interim hearing to be conducted on 14^th November. Those directions were clear and simple and should have been followed to the letter:

   6. Each party is to file no more than one affidavit from each witness.

   7.  No affidavit is to exceed more than ten (10) pages of text.

   8.  All affidavits must be filed and served no later than 7 November 2014.

3. It is disappointing to find that the parties’ solicitors blatantly disregarded those directions. I have had occasion in the past to comment adversely on the failure by some practitioners to comply with the Court’s directions:

   19.    It should be made clear that practitioners must comply with the Court’s directions imposing a timetable for the filing and service of documents. It is not acceptable for affidavits to be filed at the last minute, as it does not give the other party sufficient time to obtain instructions in order to meet the late-filed material. If it is necessary to adjourn proceedings because parties do not comply with the Court’s directions, it will usually sound in costs.[5]

   [5] Harbrow & Harbrow [2010] FMCAFAM 834 at [19]

4. The Respondent’s solicitor chose to file an affidavit consisting of eleven pages of text, plus annexures. The Applicant’s solicitor chose to rely on two affidavits by the Applicant, and would have relied on a third affidavit by the Applicant had it not been the subject of strong objections. The offending affidavit was filed on 12^th November, five days out of time, and was not served on the Respondent’s solicitor at all.

5. If lawyers blatantly flout the Court’s directions in preparing matters for an interim hearing, they will face either rejection of the non-complying documents or an adjournment with costs. Let there be no mistake about that.

6. The Court also expects parties to be prepared for the hearing. The parties, except for the Independent Children’s Lawyer, had 18 days’ notice of the interim hearing. It was surprising to be told by Counsel for the Applicant that he had only seen his client 45 minutes before the hearing was due to start, and it was quite unacceptable to receive a handwritten minute of orders sought at 3:50pm, over an hour and a half after the hearing had commenced. The Applicant’s Case Outline Document was rather confusing, as it described the Applicant by different given names to those on his other court documents. Good lawyers should satisfy themselves that they know the names of their clients.

Affidavits

1. The standard of the affidavits relied upon was poor, to say the least. I have also had occasion in the past to comment adversely on the regrettable practice of some practitioners of “outsourcing” the preparation of affidavits to the deponents themselves.  The resultant document is quite frequently not in proper form and, worse, frequently fails to comply with the law of evidence. “Cheer Squad” affidavits that are more submissions than statements of act and contain exhortations to the Court to make orders in accordance with the opinion of the deponents are usually of questionable evidentiary value and, if admitted, will seldom carry much weight (Harbrow & Harbrow[6]at [20]; see also Baines & Crabal[7] at [39]).

   [6] supra

   [7] [2014] FCCA 868

2. The practice of annexing to a pro-forma affidavit a character reference, often headed “To whom it may concern” will almost certainly produce a “cheer squad” affidavit which will do little or nothing to advance the party’s case but will reflect badly on the competence of the legal practitioner responsible for the document.   

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  19 November 2014