Wales and Queen

[2009] FamCA 1045

FAMILY COURT OF AUSTRALIA

WALES & QUEEN [2009] FamCA 1045

FAMILY LAW – CHILDREN - Recovery Application and application for interim orders - Father ordered to return the child to the mother otherwise a recovery order will issue - Interim hearing listed before a Judicial Registrar

Family Law Act 1975 (Cth)

APPLICANT: Ms Wales

RESPONDENT: Mr Queen

FILE NUMBER: NCC 2722 of 2009

DATE DELIVERED: 28 October 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 28 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Blackman, Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. Unless the child …, born … August 2009, (“the child”) is returned by the father to the mother by 8:30 pm on Wednesday, 28 October 2009, the following orders shall apply:

   1.1This recovery order is addressed to the Marshal, all officers of the Australian Federal Police, and all officers of the State and Territory police services.

   1.2The persons to whom this recovery order is addressed are authorised and directed to find and recover the child and for that purpose, with such assistance as they may require, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found including the premises situate at B, New South Wales.

   1.3Upon recovery, the child is to be delivered to the mother at C, New South Wales, or to the person nominated by her in writing to receive the child on her behalf.

   1.4These orders will remain in force until 17 November 2009.

2. The Application for Interim Orders 1 to 3 inclusive, sought in the Initiating Application filed by the mother on 27 October 2009, is listed for hearing before a Judicial Registrar in this Court on Tuesday, 17 November 2009.

3. The father shall file and serve a Response and any affidavit material upon which he relies in respect of the Interim Hearing fixed for 17 November 2009, by Friday, 6 November 2009.

NOTATIONS

A.Order 1 hereof subsumes the Application for Interim Orders 4 to 7 inclusive, sought in the Initiating Application filed by the mother on 27 October 2009.

B.No parenting orders have been made today by reason of the shortness of service upon the father, which has precluded his ability to consult a lawyer or to file any Response or affidavit material.

C.The mother has conceded that she will facilitate the child spending time with the father in advance of the Interim Hearing fixed for 17 November 2009.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2722  of 2009

MS WALES

Applicant

And

MR QUEEN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. Before the Court for determination is an Initiating Application filed by the mother on 27 October 2009.  The application seeks a variety of interim orders, including recovery orders and parenting orders concerning a child of the parties, born in August 2009 (“the child”).

2. When the Application was filed by the mother on 27 October 2009, it was placed before a Registrar who made orders for short service of the Application upon the respondent father.  The Application was served in accordance with those orders for short service, the father having been served with the mother’s documents at about 5:00 pm on 27 October 2009.

3. In compliance with the orders for short service, the Initiating Application came before this Court for interim determination today at 2:15 pm.

4. The father has appeared to contest the Application but is unrepresented.

5. The applicant mother, Ms Wales, was born in 1991.  She is currently 18 years of age. 

6. The respondent father, Mr Queen, was born in 1980.  He is currently 29 years of age.

7. The parties have apparently had a tempestuous relationship in recent years, and born to their relationship was their child.  The parties separated for the final time on 16 October 2009 – that is 12 days ago.  At the time of separation, the child was aged approximately two months.

Application for adjournment

1. Before the Court today the father has sought an adjournment of the mother’s Application for interim orders, on the basis that he has had insufficient time between the time of service yesterday afternoon and the hearing this afternoon to solicit legal advice and prepare documents in reply.

2. His application for adjournment was resisted by the mother and was ultimately dismissed by me following submissions.  The reasons for the dismissal of the adjournment application briefly stated are as follows.

3. The evidence contained within the affidavit of the mother filed on 27 October 2009 demonstrates that there is a prima facie need for urgency in the determination of these proceedings on an interim basis. The subject child is aged only two months. Allegations have been made by the mother that the father has been forbidding any form of interaction between her and the child.  That is the subject of dispute but that is the allegation nonetheless. The mother also alleges that she has been the primary carer for the child.  Similarly, that evidence is the subject of dispute, but it remains the allegation.

Orders sought by the parties

1. The orders sought by the mother on an interim basis are:

   a)Recovery orders in accordance with Interim Orders 4, 5 and 6 set out within her Initiating Application filed on 27 October 2009; and

   b)Parenting orders, which would provide for the child to live with her, and for the child to spend time with the father as follows:

   i.Each Monday from 10:00 am to 5:00 pm;

   ii.Each Wednesday from 10:00 am to Thursday to 10:00 am; and

   iii.Each Friday from 10:00 am to 5:00 pm.

2. The interim orders sought orally by the father are parenting orders that are an extract mirror image of those proposed by the mother.

The evidence

1. The evidence adduced by the applicant mother in support of her Application is that contained within her Affidavit filed on 27 October 2009. 

2. When asked, the respondent father indicated that he did not wish to ask any questions of the mother in cross-examination concerning her evidence.

3. As I have already observed, the father has not filed any affidavit evidence himself by reason of the shortness of his service.  As a consequence, I granted leave to him to adduce oral evidence for the purposes of his reliance in these proceedings.  I also granted leave to the mother to conduct a truncated cross-examination of the father upon that evidence.  Such evidence was provided by the father and such cross-examination was conducted by the mother.

4. Following evidence being given by the father, it became apparent that the parties are vehemently opposed on many salient factual issues.

5. As to the past care of the subject child, the mother says that she was the primary carer.  She says at paragraphs 25 and 26 of her affidavit that following the child’s birth she would feed, bath and clothe the child, get up to the child, change the child’s nappy, and attend to the child when she was crying.  The mother alleges that whilst she was caring for the child the father remained in bed and would not get up until 2:00 pm, at which time he would assist by making bottles and changing the child’s nappy.  Conversely, the father said in submissions that he and the mother shared the care of the child on a 50/50 basis.

6. As for the question of family violence, the mother alleges that she was assaulted by the father on frequent occasions in the past.  She alleges at paragraph 32 of her affidavit that the father has pulled her hair, grabbed her on the arms, dragged her on the floor, choked her by pushing his fingers into her throat, ripped her clothes, dragged her off the bed by her feet, punched her on the face, and kicked her on the side whilst she was pregnant with the child.  She alleges that the police became involved in an incident between them in about September 2009, but that there is no apprehended violence order between the father and her.  The father made no mention of the issue of family violence in either the evidence or submissions, but I gained the distinct impression from him that he did not accept the validity of those allegations.

7. The mother also makes allegations about the father’s abuse of alcohol.  She alleges that the father drinks alcohol to excess.  She alleges that she has witnessed the father drinking alcohol every day in the past and that when he has consumed all of the alcohol in their former household, he has driven a vehicle to his mother’s home to obtain more beer.  Similarly, the father made no mention of those allegations in either his evidence or his submissions, but as with the case concerning the issue of family violence, I gleaned the impression that he did not accept the validity of the allegations made by the mother.

8. The parties are also disagreed about the state of their respective households.  The father alleged in his evidence that the household now inhabited by the mother is dishevelled and overcrowded.  That is not conceded by the mother.

9. The manner in which the Court is required to conduct interim proceedings of this nature requires that a decision be made by the Court upon evidence which is either uncontested or upon inferences that fairly arise.  It is not feasible for the Court to rely upon contested allegations of the sort to which I have just adverted in reaching a decision.

10. The evidence which is uncontested, and that which permits inferences to be fairly drawn, may be summarised as follows.

11. The mother has had responsibility for the child at least in respect of meeting half of her needs, and the father has conceded that to be the case.  It may be that the mother had primary responsibility for the child as she alleges, but given the nature of the father’s evidence, the mother’s responsibility for the child has not been inferior to that of the father.

12. It is also uncontested on the evidence that the child and the mother have not spent any time together since the time of the parties’ final separation on 16 October 2009. 

13. The father has alleged that the mother shows no interest in the child and has not asked to see the child.  That allegation contradicts the allegations made by the mother, to the effect that her efforts to the see the child have been thwarted by the father. 

14. Although the parties are in dispute about that particular issue, the evidence permits the inference to be drawn that the mother does have an interest in the child.  The fact she has brought these proceedings with such urgency suggests in itself that she is very keen to re-establish her interaction with the child.  The father has admitted in his evidence that the mother does indeed love the child.  The father has also admitted in his evidence that he is disappointed by the parties’ separation and that he would like, or at least would contemplate, their reconciliation.  The father has not sought any parenting orders himself before being served with the mother’s application yesterday afternoon and the reason for that is that he was hoping for reconciliation between the parties. 

15. I draw the inference that the father has been prohibiting interaction between the child and the mother, and that he has been doing so as an enticement to the mother to reconcile their relationship.

16. The father proposes that orders be made today by the Court that would permit the child to spend time with the mother.  That in itself is an acknowledgment that the mother does have the capacity, in the view of the father, to properly parent their child. 

17. I have already outlined the orders that were proposed orally by the father at the commencement of the hearing. When the father was invited to make submissions at the conclusion of the evidence, he advocated for orders which varied considerably from those with which he started.  He submitted that the mother would be able to see the child at any time, so long as she was prepared to visit the child at the household where he and the child live.  In my view, the fact that the father has proposed such a different regime of interaction between the mother and the child at conclusion of the case, in comparison to the orders he proposed at the beginning of the case, suggests that he has not thought carefully about the parenting regime that ought be implemented and that he is presently making decisions on a reactive basis.

Best interests of the child

1. The Court is required, in making a determination about what interim parenting orders to impose, to consider the best interests of the child. In making a determination about what is in the child’s best interests, the Court is mandated to have regard for the provisions of s 60CC of the Family Law Act 1975 (“the Act”).

2. Because of the sparse evidence that has so far been adduced, the Court is unable to draw conclusions about all of the criteria set out within s 60CC of the Act.

3. As to the primary considerations, to which the Court must have regard under s 60CC(2) of the Act, I work on the premise that the child has a meaningful relationship with both parents. I am unable to draw any conclusions about the need to protect the child from physical or psychological harm as a consequence of being subjected to, or exposed to, abuse, neglect or family violence because of the highly conflicting nature of the evidence brought by the parties.

4. In relation to the additional considerations to which the Court must have regard under s 60CC(3) of the Act, the child is only two months of age. The child is not yet literate and is unable to express any view.

5. I am unable to make any finding about the nature of the relationship that the child has with either parent.

6. The evidence does permit me to conclude that the father does not presently demonstrate a willingness to facilitate or encourage a close, continuing relationship between the child and the mother.  As I have already indicated, the evidence warrants an inference that the father has thwarted any interaction between the child and the mother since the time of final separation on 16 October 2009.

7. It has been submitted from the bar table that the mother will facilitate ongoing time between the child and the father if the child was to preside primarily with her.  That submission is valid if one accepts the evidence set out within the mother’s affidavit. It has not been directly challenged.

8. In view of the age of the child, I am unable to form any conclusion about the likely effect of any changes in the child’s circumstances if the child is to be separated from the father, with whom the child is currently living. 

9. There is no practical difficulty and expense for the child to spend time with the parent with whom the child is not primarily living. Both of the parties live in relatively close proximity on the Central Coast in New South Wales.

10. In my view, the evidence permits a finding that at present the father is not providing for the emotional needs of the child by precluding any interaction between the child and the mother. 

11. There is nothing about the maturity, sex, lifestyle and background of the parties on the evidence so far adduced that would count adversely against either party.

12. Neither party identifies themselves as Indigenous Australian.

13. The fact that the father is currently precluding interaction between the mother and the child demonstrates a lamentable attitude to the child and to the responsibilities of parenthood.

14. I can make no finding about the existence of family violence concerning the parties because of the extent of the conflict in their evidence. 

15. On the basis of the evidence so far adduced by the mother there is no family violence order in existence.

16. I am not satisfied that the orders proposed by the mother, or those proposed by the father, would more likely lead to the institution of further proceedings.

17. Having regard to those considerations under s 60CC of the Act, I am led to the conclusion that the best interests of the child dictate that she presently be in the primary care of the mother.

Orders

1. I will make only the recovery order sought by the mother.

2. Both parties have requested that I make parenting orders today dealing with the residence of the child and the time that she spends with the non-residential parent.  I am not prepared to make such interim parenting orders.  To do so has the potential, in my view, to disadvantage the father. 

3. The father was only served with the mother’s Application late yesterday afternoon.  He has had insufficient time within which to properly prepare his case and he lacks legal representation.  Inquiries made within the Registry demonstrate that availability exists for the parties to contest interim parenting orders before a Judicial Registrar within the next few weeks, on the 17 November 2009, and I intend to make procedural orders that will permit the parties to fairly litigate interim parenting orders on that date.

4. As a consequence, I make the following orders.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  28 October 2009