BLETCH & DOUGLAS

[2016] FamCA 123

FAMILY COURT OF AUSTRALIA

BLETCH & DOUGLAS [2016] FamCA 123

FAMILY LAW – CHILDREN – Enforcement of orders – Recovery order – Where there is one child who is seventeen and a half years of age – Where final parenting orders were made by this Court in 2008 whereby the mother was permitted to move with the child to United States– Where a court in the United States made orders that the father have sole legal and physical custody of the child – Where those orders are registered in this Court - Where the location of the child is unknown –Where it is appropriate in the circumstances to issue a recovery order.

Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth)
APPLICANT:	Mr Bletch

RESPONDENT: Ms Douglas

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law, Ms Shea

FILE NUMBER: SYF 2318 of 2003

DATE DELIVERED: 20 January 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 20 January 2016

REPRESENTATION:

SOLICITOR FOR THE APPLICANT: Mr Karras

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT MOTHER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

Orders

1. Leave is granted to the applicant’s solicitor to inspect documents produced to the Court by Department of Immigration, Department of Foreign Affairs & Trade, Queensland Department of Education & Training and Department of Human Services (Cth).

1. A Recovery Order issue directed to the Marshal of the Court, all officers of the Australian Federal Police and of the Police Forces of each of the States and Territories of Australia authorising and directing them to recover the child B born … 1998 and to deliver the child to the father being the person with whom the child is to reside pursuant to Orders currently registered and enforceable in this Court.

1. The Court notes that it is anticipated that where practicable on the execution of the Recovery Order the officer or officers will be accompanied by the paternal grandfather and/or the father.

1. The Court requests the assistance of the Marshal, the officers of the Australian Federal Police and of the Police Forces of the States and Territories of Australia to assist, if practicable, in accompanying the child and the father and paternal grandfather to the closest capital city registry of this Court to the place of execution of the Recovery Order and to await at that registry pending communication between the Manager of Child Dispute Services of that registry or his or her nominee, the father, the paternal grandfather and the child.

1. Leave is granted to the solicitor for the father to release such address or addresses as have been provided pursuant to Commonwealth Information or Locations orders in these proceedings to a process server for the purposes of service on the mother of all documents filed in these proceedings as soon as practicable after the execution of the recovery order and it is directed that any affidavit of service not refer to the address of service but refer to “an address provided under a location order made by this Court”.

1. The Court notes the provisions of s 67P Family Law Act 1975 (Cth) in relation to the prohibition on the provision of any information provided under a Location Order including a Commonwealth Order, to the father or to any person or officer not identified in that section.

1. The father facilitate the attendance of the child on his lawyer at times, dates and places requested by the Independent Children’s Lawyer.

1. Any party or person is granted liberty to apply in relation to these Orders or the implementation of these Orders on giving 24 hours’ notice to the Court and to each other party.

1. The proceedings are adjourned to 10.00 am on 28 January 2016.

1. That, Ms Douglas born … 1974, her servants and/or agents be and are hereby restrained from removing and/or attempting to remove and/or causing and/or permitting the removal of the child B born … 1998 (“the child”), from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal, or 12 months from today’s date whichever first occurs.

1. Order 10 made on 21 December 2015 is vacated on and from the execution of the Recovery Order.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF2318 of 2003

Mr Bletch

Applicant

And

Ms Douglas

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, B.  He was born in 1998 and is seventeen and a half years of age. 

2. The father seeks to enforce parenting orders made in the United States of America (“U.S.”) by seeking a recovery order causing the child to be returned to him.

3. The father is about 56 years of age.  I understand that the mother is about 41.  They started to live together in 1996 or 1997 and separated in 2002.  Parenting proceedings were started in this Court in 2003.  There were also apprehended violence proceedings. 

4. An apprehended violence order (“AVO”) sought against the father was refused. Ultimately, parenting orders were made on 12 November 2003 in terms agreed between the parents for something like an equal time arrangement.  The parents were involved in a business arrangement to do with the interpretation of children’s or babies’ communication.  The evidence suggests that both the parenting and the business relationship broke down again at about the end of 2006. 

5. On 7 March 2008, final orders were made by this Court after a defended trial in proceedings wherein the mother proposed that she relocate with the child to the U.S. and the father proposed that the child remain living in Australia.  The final orders favoured the mother’s application and included provision for the child to spend unsupervised block periods with the father, both in Australia and the U.S.  The child spent time with the father in Australia between June and September 2008.  That was during the U.S. summer school break.  The father proposed that he have some more time with the boy in the U.S. in October of that year.  There was an indication that the mother refused and the father blocked the child’s departure from Australia. 

6. Ultimately, the mother agreed to the father’s proposal.  There was some court involvement in relation to that.  The father travelled to the U.S. in October 2008 but had no time with the child.  The mother claimed that the child suffered post-traumatic stress from the effects of his time with the father in Australia.  There are records to suggest that the boy gave very different versions of his time with his father over that period.  He said to one officer that he had a dreadful time and made an allegation to a Dr H, a clinical psychologist, that he was locked in a basement.  The child later reported to somebody else that he had a great time and, in fact, there was no basement.  At the end of 2008 the mother moved residence and school without notice to the father.  The father became frustrated, travelled to the U.S. in about April 2009, grabbed the child outside his school and manhandled him into a car.  I think an Australian court ordered him to return the child to the mother and the boy was returned.  Again, there were different versions from the boy about whether he suffered at the hands of the father or not. 

7. There were proceedings taken in a juvenile court in State C in relation to allegations of abuse or violence against the father.  On 8 April 2010 a Judge Hahn found that there was no evidence of abuse and made orders consistent with reunification of the child with the father and for Skype contact and so on.  I understand that the parenting issue was then referred to or left with, a civil court in State C. 

8. There were proceedings in this Court in the nature of forum proceedings wherein the father sought that the forum for proceedings in relation to the child be Australia and the mother that the forum be the State C Court.  On 22 July 2011, Watts J, decided that State C was the appropriate forum. 

9. The proceedings in State C ultimately resulted in an order made on 17 March 2015 in the absence of the mother, providing for the father to have sole legal and physical custody of the child.  A finding was made that the mother had abducted the child and kept his location hidden to prevent the father from finding the child and from having any contact with him.  Importantly, those proceedings had been commenced by the mother.  The mother was ordered to relinquish the boy’s passport to the father, and investigative agents were authorised and directed to try and locate the mother and the child to procure compliance with those orders, and an invitation was made for any further orders to be sought without notice to the mother.  In the documents that were available to that Court, there was a report from a Dr M, who canvassed a great deal of background material.  Relevantly, there was reference to Skype interaction between the father and the child in August of 2011 suggesting a level of paranoia in the boy.  On 28 September 2013, the boy displayed a very angry reaction to his father during a Skype session, to the effect:

   You’re nice about – around the Court, but you’re a useless waste of space.

10. The State C Court had before it an affidavit of a maternal uncle of 30 October 2012.  The uncle deposed that he had never met the father but set out concerns for the child at the hands of the mother.  He deposed that, to his observation in 2010 the boy was a normal child; he was satisfied that the boy had subsequently been medicated by the mother and that there was a deterioration in the boy; that the mother had a history of depression; that she was a pathological liar; that the mother had accused her own mother of Munchausen syndrome (I interpose that there is something of a concern raised in these proceedings in relation to the mother and that syndrome); that the mother and child had shared a bed at times when the boy was 12 years of age and 14 years of age; and concerns were expressed by the uncle, for what they are worth, that the mother had aggravated her own father shortly before and leading to his death on a property in New South Wales.

11. An Initiating Application was filed in this Court by the father on 16 June 2015 seeking sole parental responsibility, that the child reside with him and have supervised time with the mother and for Commonwealth Information and Location Orders.

12. On 31 July 2015, Location Orders including Commonwealth Information Orders were made.  There have been responses from immigration, education and medical authorities and those responses, were provided to the registry manager. Inspection was allowed by the solicitor for the applicant father.

13. On 11 November 2015, the final parenting orders made in the U.S., being orders of the Superior Court of the State of State C, were registered in this Court. That registration occurred pursuant to Regulation 23 of the Family Law Regulations 1984 (Cth).

14. A registered order can be enforced as if it was an order of this Court (s 70H of the Family Law Act 1975 (Cth) (“the Act”)). The enforcement of parenting orders is a matter dealt with in Part VII of the Act. Enforcement is discretionary, and in relation to parenting orders, including recovery orders, the best interests of the child applies.

15. A complicating feature of the case is that s 67P of the Act requires that information provided under a Location Order, including a Commonwealth Information Order, is not to be disclosed by any person, whether directly or indirectly, except to certain persons, and that does not include persons such as the Independent Children’s Lawyer or any lawyer acting for any party except for the applicant. The applicant, in this case the father is specifically excluded. Apart from frustrating the principle that the judge should not be possessed of information not known to some parties, that presents a nice problem for giving reasons for judgment. One can understand the reasons for the provisions in the legislation but it really cuts across the obligation of the Court to explain why things have been done and why they have not been done.

16. These proceedings present special difficulties.  The Court would normally be reluctant to issue a recovery order – at least one directed to the authorities, in relation to a mature child unless the child was under some additional disability.  The Court would normally involve a mature child in decisions of importance, and there is an acceptance, I think, that it is very difficult for orders to be enforced against a mature child who is unwilling.  Here the child is 17 years of age.

17. However, under an agreement between countries and pursuant to a provision of the Australian family law, an order has been made in the best interests of the child that requires that he live with his father. 

18. There are risks to be balanced in the granting of a recovery order.  The father is alive to them.  The child has been with the mother, effectively on the run, since 2013.  He has not had meaningful personal time with the father since before that and he had fairly vitriolic and difficult communication with his father in 2013 and 2014. 

19. There are two lots of social science evidence, none of it provided with the benefit of interviews with the mother or the child but that evidence raises serious concerns in relation to the child’s welfare with the mother.  I have referred to some of that evidence above.  Obviously that evidence was influential in the orders made by the State C Court.  Those orders call for a complete reversal of living arrangements for the child from the person who, unquestionably, was his primary caregiver of the child, at least since about 2008.  Orders of that type are not made lightly. 

20. The father appears before the Court and he has given some evidence.  He says that he is alive to the fact that, in the window of time that is likely to be available upon the execution of a recovery order, it might not be possible for him to establish, a relationship sufficient for the order to be given meaningful effect.  He has thought about it.  He has taken some advice from a forensic psychiatrist about it.  He has explored and has been referred to a clinical psychologist who could assist if the process is able to extend beyond the first date.

21. The matters that need to be taken into account include the possibility that the child might not be in New South Wales and that could complicate the practical aspects of enforcement.  In my experience, the police would want to execute the recovery order by immediately delivering the child to the person with whom the child is to live.  The police cannot be expected to book flights and assist a child travelling from one state to another. 

22. As to what is in the best interests of a child, the legislation sets that out.  There are primary and secondary considerations.  In most urgent and important cases the primary considerations are the critical criteria.  There is a weighing of the benefit of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm; from being subjected or exposed to abuse, neglect, or family violence. 

23. Under orders made in 2008 on the mother’s proposals, the father was to have unsupervised block time with the child.  Not only was the mother on notice about the U.S. proceedings, she initiated them.  Those proceedings ultimately confirmed the father’s time with the child.  That suggests that there was an acceptance that there was a meaningful relationship between the child and the father.  The mother has demonstrated that she is not able or willing to facilitate that relationship. 

24. As to the protection of the child from physical or psychological harm, there are the allegations that the maternal uncle has made.  The father seems to have been taken aback by the mother’s conduct.  The mother’s conduct suggests some real pathology in her.  That is the subject of some discussion in the evidence of Dr M to the State C Court, and the evidence of Dr E to this Court.  I think in both instances there is a concern about a level of enmeshment, as one would expect, between the fugitive mother and son.  There is likely to be an alignment between them.  In order for the child to get by, he would need to have accepted the mother’s world view.  There is some support for that in the reaction that was observed in the Skype interaction between the father and the boy, including some quite paranoid statements by the boy.  He was vitriolic and intemperate.  Given that there had been no meaningful time between the father and the son since about 2009, those statements cannot have been informed by any recent direct experience by the boy of his father. 

25. There were some allegations against the father in relation to bullying behaviour by the mother in the earlier proceedings.  They were not substantiated in AVO proceedings.  They were not reflected in the orders made in this Court in 2008 and they were inconsistent with the orders the mother sought in those proceedings.  She did not raise those concerns, or prosecute those concerns with the State C Court. She did not engage with the forensic expert in those proceedings.  In legal terms one assumes that there was nothing the mother wanted to put before the State C Court.

26. In relation to the primary considerations priority is to be given to protection of a child. 

27. As to the other considerations, we do not know about any views expressed by the child and we do not know about the nature of the relationships between the child and his parents or others as at today’s date.  There are concerns, but we do not know. 

28. As to the extent that the parents have taken, or failed to take, opportunities to participate with the child, the father has had everything thrown at him over the years, and he has persisted in seeking to take up the responsibilities and the benefits of a relationship with his son, including communicating with him and spending time with him and participating in decision-making about him.  There is no suggestion that the mother has not done the same thing.  However, the mother has failed the child significantly in relation to her obligations to him. 

29. As to the effect of likely changes in the child’s circumstances, they could be devastating.  We do not know about the psychological state of the boy.  There is something in the material produced under the location orders raising concerns but it is not information I can publish. 

30. As to practical difficulties and expense, it may be that the child is in another State.  I do not know whether he is or not but that would be a problem.  Of course, if a recovery order is not immediately successful, on past record, the mother is a flight risk.  But for her being a flight risk then the obvious solution to the whole problem would be service on her rather than the immediate issue of a recovery order.  She could appear before the Court and the processes of enforcement could take place with her involvement.  Unfortunately, the mother having commenced proceedings in a State C court, ignored those proceedings and the background facts reveal that the mother has brought the child to Australia. 

31. As to the maturity, sex, lifestyle and background of the child, he is seventeen and a half but otherwise we do not know anything about him.  It could be that he is not with his cohort because of the difficult circumstances he has had to put up with but we do not know anything. 

32. As to the capacity of the parents, the suggestion is that the mother is not a capable parent, at least not at this stage.  There was a loving relationship between the child, we are told, long ago and the paternal grandfather.  There is no suggestion of a reason for a fracture in that relationship but seven years have passed since they saw each other.  The child’s relationship with the father is unknown and could be very problematic.  Whether that is just a function of the child having to accept the mother’s worldview or something else, but there is nothing to suggest that the father’s capacity is in doubt. 

1. Where there have been allegations raised in the past, they have not been confirmed.  The father has subsequently married and he and his wife have a child.  Their relationship is intact and they live together.  There is the evidence about him grabbing the boy outside his school in State C.  I understand that the father has acknowledged that that was not a sensible thing to do.  Interestingly, it did not result in immediate enforcement and I understand that contact was made with the father and there was an orderly return of the child.  Even so, snatching a child of any age is not a good idea.  As I say, otherwise there is no basis for suggesting that there is anything lacking in the father’s capacity. 

2. The attitude to the responsibilities of parenthood demonstrated by the parents – I have said what I have said about that.

3. As to family violence, I have said what I know about that.  There are no current family violence orders that I know of. 

4. It is not possible to make orders that are not likely to lead to further proceedings. 

5. One option would be for the Court to refuse to issue a recovery order on the basis of the child’s age and the very significant risk of problems on the execution of the recovery order.  Otherwise the Court could order service on the mother and hold off on the granting or execution of a recovery order in the first instance.  Finally a recovery order could issue.  The first option is not acceptable for the reasons that I have outlined.  A Court system was invoked by the parties and a decision has been made in the best interests of the child.  There is no reason to doubt the appropriateness of that decision.  There are great concerns about the process of executing the recovery order but if the Court washes its hands of the problem then that too would be far from satisfactory. 

6. In relation to notifying the mother, she has demonstrated a willingness to escape.  There are risks for the boy associated with that.  Just that by itself could be dangerous.  If she was to further hide her identity and flee, that could expose the child to danger. 

7. There are choices about the way in which a recovery order might be executed.  There was discussion today about the idea of execution at a school, if the child is attending a school.  That would have the benefit of trying to isolate the child from the mother when the order is executed.  What worries me about that is it adds the potential for harm to a whole new community.  Ultimately I do not think that would be appropriate.  With the best will in the world, something could go terribly wrong at the school.  Other children could see the child distressed. Schools are places of learning.  School should be something of a haven for children – including this child.  If the order was executed at a school, it would be tainted with this process and that could be a huge impost on the school community for teachers, children and their parents. 

8. That said, in the exercise of their responsibilities, the police over the next few days will consider what they should do and how it should be done and they have expertise in these sorts of things.  Those decisions will be made in consultation with the father.  The police might make a different decision about this issue but for my part, I would not impose anything on their discretion about that exercise.  There is a question about whether the child could be taken to see his lawyer or taken to see someone else, and I think if that can be arranged, there could be some benefit in that.  Perhaps not his lawyer because his lawyer will probably not be in the place of execution but if the child could be taken to a major registry of the Court and there was a family consultant available then that would be good.  A family consultant could assist the boy and the father in the communication of a message from father to son.  That might mean an extended role for the police because their task might not be completed even if they can get the boy to a registry.  It might not be over then and the father seems to acknowledge that at some point, he might be involved in a decision about the viability of the enforcement. 

9. In that regard I found the father to be very realistic and sensible.  No doubt he has had some advice.  The suggestion was made today about him putting something in writing to communicate an unambiguous message to the boy of love and commitment.  If that can be communicated, then that might have a benefit even if the physical exercise of recovery is not immediately successful.  It would be difficult for the boy to recast that communication in some other way.  He will see that his father is persistent and has not walked away after all these years.  He will see that the authorities have endorsed what the father has said and done. 

10. The father understands that he is not to demonise the mother.  He would like the boy’s view about him to be changed and, if that can be done, that is good.  Of course that might be a lot to expect from what might be a short conversation.  On balance, the recovery order should issue.  The officers have discretion in relation to execution and the father and the Court, to some extent, will be bound by their decision on the ground about what is best. 

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 20 January 2016.

Associate: 

Date:  15 February 2016