Federal Circuit and Family Court of Australia
(DIVISION 1)
Blatch & Blatch (No 3) [2022] FedCFamC1F 492
File number(s): SYC 1613 of 2021 Judgment of: SCHONELL J Date of judgment: 11 July 2022 Catchwords: FAMILY LAW – CHILDREN – RECOVERY ORDER – Where the children were spending time with the father in accordance with interim orders – Where the father unilaterally decided to retain the children in breach of court orders – Where it was determined that it is in the children’s best interests that they be returned to the mother’s care – Recovery order made – Recovery order stayed until 4.00 pm to give the father the opportunity to return the children without police involvement. Legislation: Family Law Act 1975 (Cth) ss 60CC, 67Q, 67U, 67V, 69ZL Cases cited: Blatch & Blatch [2021] FedCFamC1F 219
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 11 July 2022 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Lander & Rogers Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 1613 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BLATCH
Applicant
AND: MS BLATCH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
11 JULY 2022
THE COURT ORDERS THAT:
1.All times for service be abridged to allow this Application in a Proceeding to be heard by this Honourable Court as a matter of urgency.
2.Pursuant to s 67Q of the Family Law Act 1975 (Cth) a recovery order issue authorising and directing the Marshall, 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 necessary by force, find and recover the children, X born in 2010 and Y born in 2012 (“the children”) and deliver the said children to the mother, being a person entitled to have the said children with her pursuant to this order SAVE that the order lie in the Registry until 4 pm 11 July 2022.
3.The father be restrained by injunction from:
3.1 removing or causing the children, or either of them, to be removed from the mother’s care except in accordance with orders made on 30 November 2021; and
3.2 discussing parenting arrangements or the nature of this dispute with the children or either of them.
4.The recovery order remains in force for a period of 12 months from this date.
5.In relation to the mother’s application for costs on an indemnity basis:
5.1.the mother is to file and serve written submissions as to costs within 14 days limited to 10 pages; and
5.2.the father is to file and serve written submissions in reply within 14 days thereafter, limited to 10 pages.
I will reserve my decision on the Application for Costs to chambers after the filing of written submissions and…
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- [2022] FedCFamC1F 492
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CaseChat Overview and Summary
Mr Blatch and Ms Blatch, parents of two minor children, appeared before the Family Court, Schnell J, for an urgent hearing regarding the enforcement of court orders. Ms Blatch sought a recovery order to retrieve the children from Mr Blatch, who had retained them in breach of the interim orders. Mr Blatch opposed the application on the basis that it was in the children's best interests to remain with him. The court was required to determine whether the children should be returned to the mother's care and if a recovery order should be issued. The court considered the impact of the parents' conduct on the children, including the mother's allegations of family violence and the father's alcohol consumption, as well as the financial support provided by the father.
The court found that returning the children to the mother's care was in their best interests, given the adverse impact of the parents' conduct on the children and the father's failure to comply with court orders. The court issued a recovery order, which was stayed until 4:00 pm on the same day to allow the father an opportunity to return the children without police involvement. The court also restrained the father from removing the children from the mother's care and discussing the dispute with them. The matter was listed for mention to allocate hearing dates.
In conclusion, the Federal Circuit and Family Court of Australia determined that it was in the best interests of the children to be returned to their mother's care and issued a recovery order with a stay to provide the father an opportunity to return the children without police involvement. The court also restrained the father from removing the children from the mother's care and discussing the dispute with them. The matter was listed for mention to allocate hearing dates.
The court found that returning the children to the mother's care was in their best interests, given the adverse impact of the parents' conduct on the children and the father's failure to comply with court orders. The court issued a recovery order, which was stayed until 4:00 pm on the same day to allow the father an opportunity to return the children without police involvement. The court also restrained the father from removing the children from the mother's care and discussing the dispute with them. The matter was listed for mention to allocate hearing dates.
In conclusion, the Federal Circuit and Family Court of Australia determined that it was in the best interests of the children to be returned to their mother's care and issued a recovery order with a stay to provide the father an opportunity to return the children without police involvement. The court also restrained the father from removing the children from the mother's care and discussing the dispute with them. The matter was listed for mention to allocate hearing dates.
Orders
Orders of the court
SYC 1613 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR BLATCH
Applicant
AND:
MS BLATCH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
11 JULY 2022
THE COURT ORDERS THAT:
1. All times for service be abridged to allow this Application in a Proceeding to be heard by this Honourable Court as a matter of urgency.
2. Pursuant to s 67Q of the Family Law Act 1975 (Cth) a recovery order issue authorising and directing the Marshall, 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 necessary by force, find and recover the children, X born in 2010 and Y born in 2012 (“the children”) and deliver the said children to the mother, being a person entitled to have the said children with her pursuant to this order SAVE that the order lie in the Registry until 4 pm 11 July 2022.
3. The father be restrained by injunction from:
3.1 removing or causing the children, or either of them, to be removed from the mother’s care except in accordance with orders made on 30 November 2021; and
3.2 discussing parenting arrangements or the nature of this dispute with the children or either of them.
4. The recovery order remains in force for a period of 12 months from this date.
5. In relation to the mother’s application for costs on an indemnity basis:
5.1. the mother is to file and serve written submissions as to costs within 14 days limited to 10 pages; and
5.2. the father is to file and serve written submissions in reply within 14 days thereafter, limited to 10 pages.
I will reserve my decision on the Application for Costs to chambers after the filing of written submissions and will determine it on the papers.
6. This matter is listed at 4.00 pm on 13 July 2022 for mention before me for the purposes of allocation of hearing dates.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
In support of the Application, I have read also the judgment of Campton J delivered 30 November 2021 and the Family Report of Mr J dated 4 April 2022.Background facts In Blatch & Blatch [2021] FedCFamC1F 219, Campton J referred at some length to the background facts relevant he determined to the making of interim parenting orders in November 2021. In particular, I note the following from his Honour’s judgment: 36The father initiated parenting proceedings on 8 March 2021. The mother by way of her Response filed on 9 April 2021 sought different orders as to the parenting of the children and orders of a financial character, including by way of period and non-periodic Child Support Departure. 37The parties commenced cohabitation in 2003, married in 2005 and separated within the home at the Suburb K Property between April 2018 (on the father’s evidence) and November 2018 (on the mother’s evidence). The mother and the children vacated the home on 2 December 2018. An Order for Divorce was made on 21 September 2020.38The mother gives evidence that the father engaged in a pattern of family violence over the course of the relationship including occasioning physical and verbal abuse towards her, monitoring her phone history, and withholding her car keys and phone for periods of time. The mother provides examples of the father throwing or threatening to throw objects at her on at least two occasions, including a bottle opener and her mobile phone. She also alleges that the father wielded his superior financial position to leverage control over her, by restricting her access to funds and by rebuking her for expending monies on, for example, the doctor. The mother gives an evidence as to an occasion when she requested the father not attend a planned holiday with her family, and subsequently receiving a text message from the father stating “make sure your half of the mortgage is there or when you go I will change the locks”. 39The mother alleges that on occasions the father’s conduct occurred in the presence of the children.40The father directly puts in issue the fact and contents of these allegations. He apportions fault for conflict in the presence of the children to the mother.41The mother gives evidence as to an exchange between the parties on 2 December 2018. She asserts that on this date and in the presence of the children, the father became verbally abusive towards her while the parties were preparing dinner at their home. She deposes to the father demanding repeatedly that she leave the home, and to him taking her mobile phone and car and house keys. Upon the mother demanding the return of the phone, she deposes to the father “propelling [her] up” and she then falling horizontally straight onto her back, causing her severe pain. She says that she then left the home and reported the incident to police. 42The father’s version of 2 December 2018 is that the parties engaged in an argument, during which he perceived the mother to grab her phone. He says that he was concerned she would begin filming him. He alleges she has done so in the past. The father took the mother’s phone. He denies instigating any form of physical contact with the mother, but rather deposes to the mother pushing him against a wall and grabbing at him in an attempt to retrieve her phone. He says that her doing so caused him “sharp pain” in his ankle. In response to the pain, the father says that he “pushed [the mother] off [him] with [his] left arm”. He agrees that the mother ended up on her bottom on the floor. He did not report her being visibly distressed. 43It is uncontroversial that the children were present during the exchange at the home on 2 December 2018, and that their experience of the exchange was adverse to their best interests. 44The impact on the children of being present and experiencing significant conflict between their parents is yet to be explored or opined by way of any expert evidence.45The father was charged with a criminal offence of common assault arising from the exchange on 2 December 2018. An Apprehended Violence complaint made by the police on behalf of the mother grounded orders restricting prohibiting the father’s conduct directed to the mother and his contact with her.46After the mother and the children vacated the Suburb K Property on 2 December 2018 they commenced to reside with the mother’s parents. They have now lived with the maternal grandparents for nearly three years. 47Following the exchanges on 2 December 2018 it is uncontroversial the children spent very limited time with the father. Some limited contact did occur at school or sporting events until the commencement of supervised time on 4 July 2021. Each party blames the other for this limited time spent from late 2018 until mid-2021. The affidavit evidence records a series of exchanges between parties and/or their solicitors as to arrangements for time to be spent over this period. Each set of exchanges progressed and then broke down or failed to crystalise. The cause of these failures cannot be determined in an interim hearing.48The father was convicted in the Local Court in late 2019 of one count of common assault. An Apprehended Violence Order made restricting and prohibiting the father’s conduct was made for a period of two years. 49On appeal the District Court quashed the conviction and discharged the Apprehended Violence Order.50The mother gave evidence in her Affidavit as to a continuing pattern of calculated controlling, harassing and what she contended to be inappropriate behaviour by the father from 2 December 2018 until the District Court determinations on 15 October 2020. This evidence includes the father following her home in the car on at least two occasions, loitering in his car around the children’s school and attending the mother’s home without notice or invitation and refusing to leave when asked. The mother gives evidence that on two occasions she was required to call the police to assist with the father’s removal from outside her home, although she says that on each occasion he left of his own volition before police ultimately attended.51The mother gives evidence that the father frequently engaged in intimidating behaviour at the children’s Saturday sporting events. She describes the father “glaring at [her], taking photos, smirking” and on a number of occasions, approaching her with comments about the ongoing dispute between them, including “you’re damaging those kids”. She deposes to these incidents causing her to feel stressed, anxious and intimidated.52The mother’s evidence is that the father’s conduct has a similar impact on the children, causing them to feel intimidated and anxious. She records a reluctance expressed by the children to spend time with the father during this period, deposing to remarks made by the children where they identified feeling worried about their father attending social and sporting events and expressing a wish that he not attend. She says she observed the children turn away from their father upon his approach, wiggle out of his embraces, and become visibly upset by his unexpected appearances. 53The mother says that the children have said to her things that indicate they have been informed of matters in these proceedings by the father, for example, X saying that “he told me that it (the assault) wasn’t what I thought it was, or what I had seen. He said that he had a really sore ankle and so that’s why he pushed you away. And he would never do something like that”. 54Of the gifts the mother asserts the father has given the children, one included a smart-watch which had on it a video of the father where he records himself saying, “Don’t listen to them when they tell you I’m not allowed to see you”. 55The father in contrast deposes to the children being excited to spend time with him, and reports the children being comfortable and affectionate towards him on the occasions that he did attend sporting and other social events. He recounts being met with enthusiasm upon arriving at one of the children’s father-daughter events, with the child exclaiming to her teacher “Look! My daddy came!” He provides evidence of conversations he shared with the children where they expressed their desire to be around and spend more time with him, including by saying “I’m so glad you are here dad” and “I want to spend time with you”. The father apportions blame for any inability of the children to spend time with him on the mother, providing descriptions of the mother (for example) taking the children’s hand and pulling them away from him. 56As to the conflict which took place at the children’s sporting events, the father provides a starkly different account of the events to that of the mother. He says that on the majority of occasions he kept his distance from the mother, and that it was she who acted in an openly hostile way towards him. He asserts that on about six occasions, he received calls from police informing that a report had been made about him by the mother, which caused him to feel harassed.57While finding of fact as to what occurred will await a final hearing, it is uncontroversial the conflict had an adverse impact on children and their interests. The Chapter 7 Expert will be able to discern the children’s observations, experience and perceptions of these events.58The mother exhibited a letter sent by the father solicitors to her solicitors, dated 6 August 2019. Contained within that letter was a statement that the father “…will not sign any documents for [U School] until he gets reasonable access to his children and has sensible discussions about a property settlement to ensure that he can afford to meet the school fees in the future.” 59This letter was sent on the father’s instructions and with the benefit of legal advice. The undercurrent of intimidation and coercion generates disquiet. It is a window into the father’s attitudes and his incapacity to separate or prioritise the needs of the children from his own.60The mother gives evidence as to her observations of, and experience of, what she describes as the father’s excessive alcohol consumption over the period of cohabitation, and of the impact his “problematic drinking” had on both she and the children. Her observations and experience of the father’s behaviour after he has consumed alcohol are indicative of an incapacity to regulate his anger and behaviour and a diminished ability to care for the children. They include being unable to drive the car at times where a parent was required to do so, with the mother deposing to two occasions where the burden of driving the children to hospital fell solely on her because the father had been drinking. It also included one occasion where the father was slow or failed completely to react to one of the children running around the home. The mother says that as a result the child injured herself on a coffee table, requiring stitches. The mother drove the child to a medical centre on that occasion.…63It was an agreed fact for the hearing of the review that nine CDT tests were requested by the mother pursuant to the Order made 21 April 2021, the requests being made on 5 May, 7 June, 6 July, 23 August, 31 August, 14 September, 20 September, 19 October and 28 October 2021.64The father undertook the four tests being 6 May, 1 September, 21 September and 29 October 2021, and disclosed the results of such tests on 17 September 2021 (for the tests undertaken on 6 May and 1 September 2021), and 12 October 2021 (for the test undertaken on 20 September 2021) and in the shadow of the Review, the result of the 29 October test.65The father conceded his non-compliance with five of the nine requests. There was no issue as to his receipt of the requests. His failure to comply for the months of June, July, and August creates an adverse inference. His explanations for non-compliance, including that he had obtained referrals for the incorrect test type, that he was unwilling to attend a testing clinic due to escalating COVID-19 case numbers, that he received a request “too late” to complete a test, and that he had already submitted to testing twice within a one month period, are unconvincing. The father was well aware of the allegations of risk arising from his alcohol consumption at the time of the interim hearing. He had the benefit of legal advice at that time and thereafter. He knew, or ought to have known, that the process of testing and the results produced would be objective evidence indicative of his capacity to limit his alcohol consumption.66The father submitted that on a consideration of all of the evidence he did not present an unacceptable risk in the event he spent unsupervised time with the children. As to his alcohol consumption he said that he drinks alcohol socially and moderately. He concedes that on occasions, he drinks to excess, but does not see that as presenting a risk to the children. He denied the mother’s characterisation of the occasion where one of the children injured herself on a coffee table. He does not deny drinking on that occasion but says the reason he did not drive the children to the medical centre was because he was comforting the child in the back of the car. 67The father said in his affidavit the CDT results that had been received were higher than the problematic 2.1 per cent level because his “base level would have been higher” and that “significant abstinence has been required to get the base level down, as moderate consumption appears to show elevated CDT levels”. I reject the father’s lay opinion. 68Counsel for the father submitted that the CDT return may vary dependent upon each individual, but properly conceded that the father did not proffer any evidence as to he being likely to produce different CDT returns from the average member of the population.…97During the course of the hearing I expressed concern of the attitude of the father in refusing to contribute to the children’s periodic and non-periodic needs. 98The parties determined it was in the best interests of the children to attend U School during the marriage. The father, notwithstanding his superior financial circumstances compared to those of the mother, has refused to contribute to the children’s school fees since August 2019, being the same time as he caused the letter identified earlier in these reasons to be sent to the mother’s solicitors. He would not sign the required documents to allow Y to be enrolled in the U School commencing in Year 3. That enrolment had previously been agreed between the parties. The mother has sold a quantity of shares to pay school fees since this time.99By way of further compounding conduct, it is uncontroversial that;(a)The administrative assessment of child support payable by the father to the mother for the children issued on 8 October 2019, and as at 1 November 2021 arrears had accumulated to the amount of $36,743.54; and (b)That the father had not paid any periodic child support to the mother since March 2021, a period of eight months; and(c)As set out later in these reasons, he has had a capacity to do so.100The approach he has taken towards this financial support of the children, and his conduct in using his financial superiority to intimidate and coerce the mother at the expense of the children, does the father little credit. He has had the capacity to prioritise his capital and liquid funds to meet the cost of other endeavours, including his legal fees, in preference to financially supporting the children. He has not done so.101In my view it is necessary for the father to get some further “runs on the board” so as to ameliorate risk posed by the absence of his capacity to restrict his alcohol intake. I do not accept on consideration of the objective evidence that the father has displayed an ability to control and regulate his consumption of alcohol to date. It is in the interests of the children for the father to objectively demonstrate a sustained reduction in his consumption of alcohol, before they are to spend periods of unsupervised time with him.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
It is not for any party to seek to take the law into their own hands and to fail to comply with court orders.Conclusion I am satisfied that requiring the children’s return into the mother’s care is in their best interests. Such concerns as the father may have can be addressed at a final hearing or a further hearing. For the above reasons, I will make Orders 1 to 3 as sought by the mother. I decline to make Order 4 as sought by the mother but grant her liberty to relist the matter before me on 24 hours’ notice in the event there is a difficulty in relation to the recovery order. However, in order to give the father the opportunity to not have the children forced back into the mother’s care by the police, I direct that the recovery order lie in chambers until 4:00 pm today but then issue. The father should clearly understand that if the recovery order issues, then it is entirely a function of his own behaviour and the decisions he makes and not a function of anything done by the mother. It is within his power to ameliorate the consequences of his actions.
Ratio Decidendi
Legal Principle Established
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