BANKS & GALLI

[2014] FCCA 35

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANKS & GALLI [2014] FCCA 35

Catchwords:
FAMILY LAW – Children – Parenting Orders – Recovery Order – where mother claims that the father has retained the parties’ two young children and will not return them – where mother does not know where father is – where mother does not know where children are – family violence – where Provisional Apprehended Domestic Violence Order has issued – injunction for personal protection of mother and children.

PRACTICE AND PROCEDURE – Urgent application – leave granted to proceed ex parte – orders made until further order.

PRACTICE AND PROCEDURE – Notice of Child Abuse, Family Violence, or Risk of Family Violence – Court must take action as soon as practicable after Notice filed – where orders made 8 days after Notice filed.

WORDS AND PHRASES – “any other person concerned with the care, welfare and development of the child” – similar meaning in Family Law Act 1975 (Cth), s.67T(d) as in s.65C(c) – threshold test.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65C, 61DA, 64B, 67N, 67P,

 67Q, 67T, 67ZBA,67ZBB, 68B, 68C

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
KAM v MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847

Applicant: MS BANKS

Respondent: MR GALLI

File Number: SYC 7761 of 2013

Judgment of: Judge Scarlett

Hearing date: 7 January 2014

Date of Last Submission: 7 January 2014

Delivered at: Sydney

Delivered on: 7 January 2014

REPRESENTATION

Solicitor for the Applicant: Ms Camarsh (as duty lawyer)

Solicitors for the Applicant: Legal Aid NSW

Respondent: No appearance

ORDERS

UNTIL FURTHER ORDER

1. The Applicant is granted leave to proceed ex parte.

2. The Applicant Mother is to have sole parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010.

3. The children X born (omitted) 2009 and Y born (omitted) 2010 are to live with the Applicant Mother.

4. A recovery order is to issue for the children X born (omitted) 2009 and Y born (omitted) 2010 under the provisions of section 67Q of the Family Law Act 1975.

5. The Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Forces are authorised and directed with such assistance as they require and if necessary by force: 

   (a)To stop and search any vehicle, vessel or aircraft and search any premises or place for the purpose of finding the children;

   (b)To recover the children;

   (c)To deliver the children to the Applicant mother;

   (d)To arrest, without warrant, the Respondent in the event that the Respondent again removes or takes possession of the children.

6. As provided by subsection 67N(2) of the Family Law Act 1975 the Chief Executive Officer of Centrelink is to furnish forthwith to the Registry Manager of the Sydney Registry of this Court any information as is contained in or comes into the records of Centrelink about the location of X born (omitted) 2009 and Y born (omitted) 2010 and the location of the Respondent MR GALLI born (omitted) 1988 formerly of (omitted), (omitted) in the State of Queensland a person whom the Court has reasonable cause to believe has the children X and Y.

7. Service of the immediately preceding Order may be effected on the date of these Orders.

8. Information to be provided to the Registry Manager under Order (6) above includes the payee, financial institution, account name and number of any payment by Centrelink to or in relation to the children or the said MR GALLI or any person with whom the records suggest the children or the said MR GALLI may be.

9. These orders will remain in force until 6 January 2015.

10. The Registry Manager is permitted to disclose information provided under these Orders to:

    (a)The Registry Manager of the Newcastle Registry of the Court;

    (b)Any officer of the Federal Circuit Court of Australia or the Family Court of Australia for the purpose of that officer’s responsibilities or duties;

    (c)The solicitor for the Applicant MS BANKS;

    (d)The Marshall or Deputy Marshall of the Court; and

    (e)All officers of the Australian Federal Police and the police forces of all States and Territories being the persons to whom a Recovery Order issued in these proceedings is addressed. 

11. For the personal protection of the Applicant Mother MS BANKS born (omitted) 1988 and the children X born (omitted) 2009 and Y born (omitted) 2010 the Respondent MR GALLI born (omitted) 1988 is restrained by injunction under the provisions of section 68B of the Family Law Act 1975 from:

    (a)removing or taking possession of the children or either of them;

    (b)approaching, entering or remaining in any place of residence of the mother or the children;

    (c)communicating with the mother or the children in any way except through a legal practitioner; or

    (d)stalking, harassing or intimidating the mother or the children.

12. All officers of the New South Wales Police Force are authorised to arrest the Respondent father MR GALLI without warrant under the provisions of section 68C of the Family Law Act 1975 in the event that any police officer believes on reasonable grounds that the said MR GALLI has breached the injunction contained in the immediately preceding Order by:

    (a)Causing, or threatening to cause, bodily harm to the protected persons or any of them; or

    (b)Harassing, molesting or stalking the protected persons or any of them.

13. The Application is transferred to the Newcastle Registry of the Court.

14. Liberty to apply on two (2) days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7761 of 2013

MS BANKS

Applicant

And

MR GALLI

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of two children, X, aged four, and Y, aged three, for a recovery order against the child’s father, the Respondent to the Application.

2. The Mother also seeks a Commonwealth Information Order directed to Centrelink in an endeavour to ascertain an address where the Father may be located.

3. Further, the Mother seeks an injunction under s. 68B of the Family Law Act 1975 (Cth), for her protection and that of the children.

Background

1. The Father has not been located and the Application has proceeded ex parte. The Mother relies on her affidavit affirmed on 31^st December 2013 and some brief updating evidence, which she gave over the telephone.

2. The Mother was born on (omitted) 1988. The Father was born on (omitted) 1988.

3. There are two children of the relationship, both girls. The older child X was born on (omitted) 2009. She is 4 years and 3 months old. The younger child Y was born on (omitted) 2010. She is 3 years and 4 months old.

4. The parties began their relationship in 2008 and moved to Queensland in 2009, where they began living together.

5. The parties separated in 2009, were reconciled and finally separated in 2010. Both children remained living with the Mother.

6. The Mother deposed that she moved to Queensland in in July 2013 and stayed with an aunt of the Father. The parties did not resume living together but the Father would spend every second weekend with the children. The Mother would move out and stay with a friend on those weekends.

7. It is the Mother’s evidence that in early November 2013 the Father took the children to the house where he lives with his mother. When the Mother went to collect the children, the Father physically restrained X and the Mother was only successful in taking the younger child Y back into her care.

8. The Mother was unable to obtain assistance from the Queensland Police to secure the return of the child X. Her application to Legal Aid Queensland for a grant of legal aid was unsuccessful.

9. The Mother moved back to New South Wales with Y.

10. On 27^th December 2013 the Father brought X to New South Wales in order to go camping with her and his own mother. He asked if Y could go with them. The Mother agreed, and also said that she would go as well.

11. On 30^th December, the Mother claims that the Father became involved in an altercation with his mother and his 14 year old brother. The Mother claimed that the Father was intoxicated. She went to remove the children and the Father then struck her “multiple times” and left in his car with both children.

12. The Mother reported the matter to the police, who charged the Father and applied for an Apprehended Domestic Violence Order against the Father. The charges and the application for the Apprehended Domestic Violence Order are listed for plea or mention at the Raymond Terrace Local Court on Tuesday 21^st January 2014.

13. The Mother deposes that when the Father was arrested he handed the children over to one of his aunts. When the Father was released on bail he collected the children and took them with him. She does not know where he has gone but believes that he may have returned to Queensland.

The Ex Parte Hearing

1. The Father did not attend Court, as the Mother had been unable to serve the documents on him. The Mother attended Court by telephone, but she was represented by a solicitor, Ms Camarsh, acting as duty lawyer. The Mother relied on her affidavit. She gave oral evidence affirming the truth of the matters in her affidavit and gave oral evidence, in which she advised that she had been unable to arrange for the Apprehended Domestic Violence Order to be registered in Queensland. She has had no further contact with the Father. The Queensland Police have been unable to carry out a welfare check on the children.

Applications for Parenting Orders and other Applications concerning Children

1. Section 60CA of the Family Law Act 1975 requires the Court, when considering making a parenting order, to regard the best interests of the child or children concerned as the paramount consideration.

2. The Court determines what is in a child’s best interests by considering the matters contained in subsections (2) and (3) of s.60CC of the Act, giving greater weight to the primary considerations set out in paragraph (b) of s.60CC(2):

   the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. When making a parenting order, the Court is required by s.61DA(1) to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence.

4. Where, as in this case, a party has filed a Notice of Child Abuse, Family Violence or Risk of Family Violence under s.67ZBA of the Act, the Court is required by s.67ZBB to take action as soon as practicable after the notice is filed and, in any event, within 8 weeks after the notice has been filed. In this case, the Notice was filed on 31 December 2013 and Orders have been made today, 8 days later.

5. A recovery order is made under s.67Q of the Act, and it is an order requiring the return of the child to a parent or other persons referred to in that section.

6. The persons who may apply for a recovery order are described in s.67T. Interestingly, the list of persons who may apply for recovery order in s.67T is not identical to the list of persons in whose favour a recovery order may be made under s.67Q(1). Section 67T prescribes that the persons who may apply for a recovery order are persons in whose favour a parenting order has been made, or a grandparent, or:

   (d)any other person concerned with the care, welfare or development of the child.

7. Thus, a grandparent can apply as of right, but a parent cannot, unless there is a parenting order already in existence in favour of that parent. It would appear that the legislature intended the same threshold test to apply in s.67T(d) as applies in identical wording in s.65C(c).

8. The description of a “threshold test” was first used by Burr J in the Family Court when discussing s.65C(c) in KAM v MJR[1] at 667:

   5.1.3In order to proceed beyond the mere making of the application, the applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.

   [1] [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847

9. The same consideration must apply in s.67T(d). In reality, it would usually not be difficult for a parent who has been the primary caregiver of a child to demonstrate that he or she is a “person concerned with the care, welfare or development of the child”.

Conclusions

1. The Application has been brought in circumstances of urgency. I am satisfied that the reasons for urgency have been established, because of the need to protect the children from being exposed to abuse, neglect or family violence. I am satisfied that the Applicant Mother is a person who is concerned with the care, welfare and development of the children, as she has been their primary caregiver from birth until comparatively recently.

2. I am satisfied that a recovery order should issue requiring the return of the children to the Mother.

3. The Mother has applied for an order that both children should live with her, which is a parenting order as set out in s.64B of the Act. As set out in Goode & Goode[2] at [43], the Court is normally required to apply the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. However, s.61DA(2) of the Act provides that the presumption does not apply where one of the children’s parents has engaged in abuse of the children or family violence.

   [2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

4. In this case, there is evidence from the Mother that the Father has engaged in family violence, both against her and other family members. Accordingly, an order will be made that the Mother is to have sole parental responsibility for the children.

5. I am satisfied that the children’s best interests would be served by an order that they should live with their mother. I have taken into account the need to protect the children from harm caused by family violence.

6. There is an Apprehended Domestic Violence Order in force against the Father, naming the Mother as one of the protected persons, along with the two children, the Father’s 14 year old brother and the Father’s mother.

7. The Mother gave evidence that there was some difficulty in registering the Apprehended Violence Order in Queensland. It appears to me that one to protect the Mother and the children from harm or violence is to issue an injunction against the Father restraining him from removing the children again, approaching the Mother or the children’s place of residence, or communicating except through a legal practitioner.

8. An order is sought under s.68C of the Act authorised the New South Wales Police to arrest the father without a warrant if the police believe on reasonable grounds that the Father has breached the terms of the injunction. I am prepared to make this order, but the terms of the injunction are wider than the matters covered by s.68C, which provides at subsection 68C(1):

   If:

   (a)an injunction is in force under section 68B for the personal protection of a person (the protected person); and

   (b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:

   (i)causing, or threatening to cause, bodily harm to the protected person; or

   (ii)    harassing, molesting or stalking the person;

   the police officer may arrest the respondent without warrant.

9. In my view, the order to be made under section 68C can only be made in the terms specified in s.68C(1)(b), notwithstanding the fact that the injunctive order itself may contain other terms.

10. The matter will be transferred to the Newcastle Registry, where it can be mentioned at 9:30 am on 24 February 2014.

11. I will grant liberty to apply on two days’ notice.    

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  14 January 2014