Bergman and Nixon

[2018] FCCA 3580

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERGMAN & NIXON [2018] FCCA 3580

Catchwords:
FAMILY LAW – Parenting – applicant filed urgent recovery order – applicant did not attend court – drug use – risk to children.

Legislation:

Family Law Act 1975 (Cth), ss.67U, 68L(2)

Applicant: MS BERGMAN

Respondent: MR NIXON

File Number: MLC 13732 of 2018

Judgment of: Judge Harland

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Melbourne

Delivered on: 4 December 2018

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondent: Ms Yeoh as Duty Lawyer

ORDERS

1. The proceeding is adjourned for Mention Hearing on 11 December 2018 at 9:30am.

2. All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >

   Until further order, the children [X] born [date] 2010 and [Y] [date] 2014 (“the children”) live with the father.

3. The mother’s time with the children be reserved.

4. Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to:

   (a)find and recover the child [X] born [date] 2010 and to deliver the child to the respondent father at Suburb A in the State of Victoria, or such other place as the father and the person effecting such recovery deems to be appropriate;

   (b)to stop and search any, vehicle, vessel or aircraft; and

   (c)to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.

5. Pursuant to s.68L(2) of the Family Law Act1975, the children [X] born [date] 2010 and [Y] born [date] 2014 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent  children’s lawyer copies of all relevant documents relied upon;

   (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

6. The father be granted liberty to apply to seek to have the matter listed at short notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 13732 of 2018

MS BERGMAN

Applicant

And

MR NIXON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The mother filed an application for an urgent recovery order on 28 November 2018.  In her affidavit, the mother says that since the parties separated in October 2016, the children have spent alternate weekends with the father by agreement.  She says she has been the primary carer and that the father has lacked interest in being actively involved with the children’s care.  She then says that the father has prevented her from seeing the children in the past eight days as at the date of her filing the application and affidavit.

3. The mother said that in the lead up to the father withholding the children, she had taken the children on 11 November 2018 to a local carnival and had included the father’s partner in the outing.  She said that she was unwell and that [X] was misbehaving.  She said she took the children to the father’s house for him to talk to [X] about her behaviour.  She says that the father yelled at [X] and pushed her, terrifying both the children and herself.  She then says that two days later, she called the father and asked him to watch the youngest child, [Y], for a couple of hours as she was still unwell.  She says that on the Wednesday the father picked up [X] from school and she asked him to care for [Y] until the next day as well, so that she could rest and she has not seen the children since then.

4. The mother says she has concerns about the children’s welfare in the father’s care as she says that the father and his partner have told [X] that the mother is crazy and has tried to hurt his partner.  She says that the father has a history of family violence, substance issues, alcohol misuse, anger issues and severe depression and refers to historical events from 2012 to 2016.  She says that the father has a long history of substance abuse, including ice, and has been found guilty of drink driving.  She says that recently the father’s behaviour has changed.

5. The mother says that she is able to provide the children with a stable, loving and protective environment and seeks that the children remain in her care.  She says this is the second time the father has unilaterally over-held the children.  She says that she wants an order in place so that there is no issue of the father picking up the children without warning and not returning them.  She also says that the children have shown a reluctance to go to the father at times. 

6. It is significant that the mother makes no mention of the fact that there is an open child protection case with respect to the children arising from a report made in mid-September 2018.  The father was served with the mother’s material last night and has not had the opportunity to prepare a response.  It is also highly concerning that the mother contacted the Registry this morning to say that she was running late and would not be at Court until 11.00am.  What is clear is that knowing that the matter was in Court, the mother has today instead attended [X]’s school and removed her from the school. She has also attended [Y]’s kindergarten and attempted unsuccessfully to remove him from kindergarten.

7. It appears that this was calculated for the timing to coincide with the matter when the matter was in Court.  It is highly concerning that, given that she had filed this urgent application, she would take action.  What is also of great concern is what is lacking in her material.  Fortunately, the Department of Health and Human Services (“the Department”) liaison officer has been able to put together some very brief information in a very short period of time with respect to the Department’s involvement in this family. I have marked the email from Ms D to my associate as exhibit A.

8. In summary, the email indicates that the Department has had extensive involvement with the family since January 2018 with concerns about the children being exposed to family violence perpetrated by the mother’s partner, not the father, the mother using ice and the mother’s mental health.  A family preservation order was made in the Children’s Court, the period between April 2018 to September 2018, with the children remaining in the mother’s care subject to a range of conditions.  Whilst the mother’s compliance with the orders was poor, the decision was made to allow the order to lapse. 

9. There were also previous reports made in 2017, again with respect to drug use and family violence with respect to the mother’s partner.  There is currently an open child protection case stemming from a report made in mid-September 2018, so presumably shortly after the family preservation order lapsed and the case is the investigative stage.   The report concerned family violence perpetrated by the mother’s partner against the mother and also the mother’s substance abuse. 

10. The mother acknowledged the family violence, but denied using drugs and made disclosures about finding pornography on [X]’s computer left there by her partner. She told the department that she had obtained an intervention order against her partner and had no intention of reconciling with him and as at 27 September 2018, the Department did not think that the children were at immediate risk of harm in the mother’s care.  In mid-November 2018, the Department was informed that the mother had reconciled with her partner and this is yet to be investigated. 

11. The liaison officer for the Department indicates that the file is substantial, and she has not had an opportunity other than to have a cursory look at the file, but has not noted any concerns raised about the father in what she has seen.  The father is assisted by the duty lawyer today who has been able to obtain an email from [Y]s kindergarten about the incident this morning and I mark that letter as exhibit B.  In that email, the centre manager states that a lady identified as the mother came in seeking to collect [Y] and that the centre refused because she was not on the enrolment form. 

12. She said that the mother became upset and suggested they call the police and she observed [X] to be upset and that [X] said she did not want the police to come.  She said that the mother appeared anxious and jittery and she suspected her to be under the influence and she contacted the police.  The duty lawyer has instructed that since then the father’s partner has attended to collect [Y] from the kindergarten.  The father has also, through the duty lawyer, handed up a series of text messages between the mother and father in mid-November and text messages between the mother’s partner and the father and I mark those as exhibit C. 

13. The father’s partner has contacted the mother’s parents and indicated that the mother and [X] are at their home and that the father has also received a text message from the mother shortly after 12:00pm this afternoon saying as they were going to mediation, she has withdrawn the application.  It is apparent from this material that there is a real risk of [X] being at immediate harm if she is not returned to the father’s care today.

14. I will order that pending further order, both children live with the father and that the mother’s time be reserved. I will issue a recovery order with respect to [X] being returned to the father. I will order the appointment of an Independent Children's Lawyer and bring the matter back before me at 9.30am on Tuesday 11 December 2018.

15. I give leave to the father to seek to relist the matter at short notice.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 7 December 2018