Verboom and Verboom

[2016] FamCA 1128

FAMILY COURT OF AUSTRALIA

VERBOOM & VERBOOM [2016] FamCA 1128

FAMILY LAW – CHILDREN – PARENTING

APPLICANT: Ms Verboom

RESPONDENT: Mr Verboom

FILE NUMBER: CAC 2136 of 2016

DATE DELIVERED: 23 December 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 23 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms R Bird, Rachel Bird & Co

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The children, B, born … 2012, and C, born … 2013, (the children) live with the mother.

2. The children spend time with the father as follows:

   (a)On Christmas Day 2016 between 10am and 4pm;

   (b)Following Christmas Day each Sunday from 9am to Monday 6pm and each Wednesday from 9am to Thursday 6pm;

   (c)Such other times as may be agreed in writing between the parties, or via the parties’ solicitors.

3. Handover, unless otherwise agreed in writing, shall take place at D Street, Suburb E (the home of Mr and Ms F) at which place and on such occasions of handover, even if inconsistent with the Domestic Violence Protection Order, it is permissible for the parties to approach within 100 metres of each other, but not closer than 10 metres of each other.

4. Until further order each party Ms Verboom, born … 1982, and Mr Verboom, born … 1981, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children, B, born … 2012, and C, born … 2013, from the Commonwealth of Australia for a period of two years.

5. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period or until the Court orders its removal.

6. I order that these proceedings be transferred from the Family Court of Australia to the Federal Circuit Court of Australia pursuant to s 33B of the Family Law Act 1975.

7. The matter is otherwise adjourned for directions on 30 January 2017 to the Federal Circuit Court of Australia.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2136 of 2016

Ms Verboom

Applicant

And

Mr Verboom

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me at short notice following an Application for a Recovery Order filed on behalf of the mother in relation to B, who is aged 4, and C, who is aged 3.  Accordingly, it means it comes before the Court on short notice on the last sitting day of the year.  Neither of the parties has had adequate opportunity to prepare material, in particular the father has not been in a position to place much evidence before me. 

2. Until recently, it seems that the parties lived under the same roof, although they have been separated, I am told, for about two years.  The father has told me that the arrangement until recently was a shared care arrangement, that is, he says each of the parents would care for the children when the other was either unavailable due to work or unavailable due to social engagements.  The mother alleges violence on the part of the father towards her.  At present, this is an untested matter.  The mother has recently obtained an Interim Domestic Violence Order which meant that, as of 19 December 2016, they were no longer living under the one roof, that is, four days ago effected that change.  The Interim Domestic Violence Order forms Exhibit 1 in these proceedings.  The children are not on the interim order. 

3. Immediately following the obtaining of the order, that is, the day after the order was served, with the order being served on 20 December 2016, on 21 December 2016 the mother arranged for the children to spend the day with the father.  This was in circumstances where she had communicated to the father that the order had been made but that she did not want to stop the children from seeing the father.  She at that stage assured him that it was not her intention to keep him from the children as disclosed on the text message annexed to her affidavit.

4. The father, on 21 December 2016, retained the children until today, 23 December 2016, and engaged in almost no communication with the mother in relation to the children save for some limited communication that appears to have taken place through his brother Mr G.  He has explained his reason for that being because of the terms of the Interim Domestic Violence Order.  Those terms allow for some communication in relation to the children.  It is unclear how much of an impediment they actually presented.  What was, however, communicated to the mother as revealed in the text annexed to her affidavit was an intention on the part of the father to continue to withhold the children from her until mediation had taken place, until she had engaged in potential treatment and until parenting orders were made by this Court.  

5. At the same time the father asserted that he had obtained legal advice.  This communication seems to have taken place through the father’s brother Mr G.  There are a number of text messages between the brother Mr G and the mother.  While the text messages are conflictual they are not voiced in an inappropriate manner.  Subsequently, Mr G indicated an inability to contact the father.  The appearance then of the father’s conduct at that point and the content of it gave the appearance that it maybe evasive.  That was reinforced by the material contained on the affidavit of service and reinforced by the circumstances that, while the children were in the care of the father, the police conducted a welfare check in relation to them but then shortly thereafter the father and the children became uncontactable.  However, as the father points out to me, he has attended Court today; that is, on being notified of court proceedings to occur shortly, he attended the Court as required to do so. 

6. These proceedings were stood down to allow him to obtain advice and he tells me that he has obtained some advice but clearly has not been able to secure legal representation today.  That adjournment was given on the basis that he hand the children over to the mother immediately pending the return to Court.  I have received no complaint to suggest that he failed to do so.  Initially the father conceded to me that he had no current appropriate accommodation but that he was taking steps to put accommodation in place.  He was limited as to his options which may be as a result of the Interim Domestic Violence Order.  He had nominated potentially staying with his uncle, who it turns out lives in H Town, or with another person, a family friend, but the father indicated he was not entirely satisfied with that as a solution.  He appeared to be seeking to engage other accommodation but indicated that he had some difficulties due to a lack of furnishings, a difficulty which the mother offered to assist him with.  Since the adjournment he has indicated that he can now stay with his brother Mr G, at I Street, Suburb J.  The material attached to the mother’s affidavit indicates that Mr G has concerns about his capacity to house the father and the children, apparently and not unreasonably due to limited accommodation.  However, in the short term there is nothing in particular indicated that would show that Mr G’s residence is inappropriate for the children to be attending. 

7. The mother’s position is that in the interim the children should live with her. The father’s position seemed to be that they would spend no time with the mother.  He has amended that position to say that it should be equal time but I accept that that amendment may have occurred as a result of my indication to him that I would make orders that the children live with the mother for the time being.  Her position is that the children should not have overnight time with the father and should spend time with him each Sunday pending a purported return to Court on 30 January 2017.  The father seeks at least equal time and seeks overnight time.  He points to the fact that there was a shared care arrangement in place before the Interim Domestic Violence Order, although I have almost no information about the particulars of how the care took place.  I at least accept that it was an under the one roof separation which means that it is likely that the children had substantial time with each of their parents until recently.  The justification that the father put forward for resisting the children’s return to the mother was a concern that following surgery, which I take to be the knee surgery referred to in her affidavit material, she has been taking an opioid prescription painkiller. This has raised some concerns for the father such that he suggested that there should be a psychological assessment of the mother before the return of the children.  At this stage what has been represented in those concerns, even taken at face value, is not sufficient to justify such a course.  He has also referred me to what has become exhibit F1, which is a letter from a person who has observed some of the asserted behaviour on the part of the mother.  Again, even taking that at face value, it does not support the position that the father advocates.  His position contrasted with the Pre-Interim Domestic Violence Order position in relation to the mother, that is, if he is right that it was shared care, and that was the arrangement in place, he has not appeared to act on concerns about any lack of capacity on the part of the mother until after she has taken the Interim Domestic Violence Order.  His approach at that point was then to cut her off entirely.  This starkly contrasts with the mother’s approach which was to give the father assurances that she would not prevent him from seeing the children after she obtained the Interim Domestic Violence Order and also in taking action post the Interim Domestic Violence Order to ensure that he spent time with the children and further her position in Court that he should continue to see the children despite the events of the last few days. 

8. In determining this matter I can only make a limited assessment of the background facts, that is, because the matter is an interim hearing and it is done without a full set of facts being before me and only the sparsest evidence.  I accept that I do not have the full picture or the full story. 

1. There are issues in relation to family violence towards the mother.  The mother has asserted unparticularised erratic behaviour on the part of the father and made some assertion about drug use.  At present that is untested.  Even on her position, the circumstances are not such as to end time with the father, simply to constrain that time.  It was urged upon me that there should not be overnight time, pending matters settling down, and as a result of some of the concerns of the mother.  The behaviour of the father in withholding the children for the last couple of days does not reduce those concerns which are raised by the mother but heightens them.  This is a case in which there is a live issue of risk in that there is alleged previous family violence towards the mother, and the actions of the father following the Interim Domestic Violence Order, as I have commented, do not reduce those concerns but heighten them.  However, the father has attended promptly in response to the Court proceedings, and there is not recited before me a history of violence towards the children.  The mother’s approach to say that there should not be overnight time is one way of dealing with the risk, that is, her proposal that there be unsupervised day time pending a return to Court for further consideration.  However, I do not find that such a restriction, at least on the present evidence, is needed given that, once the parties leave Court today, there will be orders which regulate the time that they have with each of the children.  I note that one of the matters that the father had raised was the necessity for orders to be in place. They will be place following this appearance.

2. On that basis, it is appropriate that there be limited overnight time between the father and the children until the matter comes back before the Court, particularly in the context that until recently they all lived in the same house.  Whether or not such an arrangement ought to be ongoing will be a matter for a future court to determine.  A priority at this time of change is that there be stability in the living arrangements and relationships for each of the two children.  It is important to preserve their relationships both with their mother and their father.  The mother has demonstrated a support for the father’s relationship with the children.  The father at this stage has not. 

3. I find that it is important to retain the children’s major place of living in the home in which they have been living in order to preserve some normality, at least in the short term, particularly where it seems that there are limitations on the father’s accommodation in the short term.  As I said, these matters require a further review by another court.

4. It is appropriate under those circumstances where the father cannot reside at the same home, that the primary care of the children be in the mother’s hands pending further consideration.  However, it also seems that it is in the children’s interests that there be two periods of overnight time each week pending the return of the matter to Court. 

5. The parties have addressed me in relation to the Christmas Day arrangements.  The father seeks Christmas Eve and asserts that that is something of a tradition, but the mother denies that it is a tradition and resists overnight time.  She does not object to time with the father being on Christmas Eve or Christmas Day.  I am dealing with one Christmas Day in the history of these children.  I will make orders for the children to spend time with the father on Christmas Day.  I will do that because, for the last two days, they have been retained by the father and I wish to give them an opportunity to settle back with the mother before they return to the father on Christmas Day. 

6. The mother also seeks that the children be placed on the Airport Watch List.  The father does not resist that at this stage, and there may be issues about international travel in the future, but they do not need to be resolved now.

7. The parties have both indicated that they agree that these are proceedings that should be transferred to the Federal Circuit Court and I will do so.  Doing so is in accordance with the protocol between this Court and the Federal Circuit Court, and it is a matter of the appropriate subject matter pursuant to the rules to be transferred. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 December 2016.

Associate:   

Date:  23 December 2016