Bowen and Sawer (No 2)

[2018] FamCA 530

FAMILY COURT OF AUSTRALIA

BOWEN & SAWER (NO 2) [2018] FamCA 530

FAMILY LAW – CHILDREN – Best Interests – Recovery Order – Where final parenting orders were made by consent providing for child to live with mother and spend time with father – Where the child is in the care of the paternal family and the father refused to disclose the location of the child  – Where the mother seeks a recovery order for return of the child to her care – Where the father opposed the recovery order, asserting the child’s best interests demand the child remain in his temporary care – Where the father agreed less than 12 months ago it was in the child’s best interests to live with the mother –  Where the father has not sought revision of the parenting orders – Where the father’s mere assertion the child’s best interests require the child live with him is not probative – Recovery Order issued – Ordered proceedings be adjourned for a short period to allow the father to seek legal advice and file further evidence.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bowen

RESPONDENT: Mr Sawer

FILE NUMBER: LNC 198 of 2016

DATE DELIVERED: 28 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Austin J

HEARING DATE: 28 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

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

2. The persons to whom this recovery order is addressed are authorised and directed to find and recover C born … 2007 (“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 situated at E Street, D Town in the State of Tasmania.

3. Upon recovery, the child is to be delivered to the Applicant mother at F Street, Suburb G in the State of Tasmania, or to the person nominated by her in writing to receive the child on her behalf.

4. Until the child is returned under these orders, and pending further orders:

   (a)The Respondent father is prohibited from again removing or taking possession of the child.

   (b)The persons to whom this recovery order is addressed are authorised and directed to arrest the Respondent father without a warrant if he again removes or takes possession of the child.

   (c)Orders 1.6 and 1.7 of the Orders made on 31 July 2017 are suspended.

5. These orders will remain in force until 11:30 am on Friday, 6 July 2018.

6. The Application in a Case filed by the mother on 28 June 2018 is listed for hearing before Justice Austin in the Newcastle Registry of the Court at 11.30 am on Friday, 6 July 2018.

7. Leave is granted to the parties or their legal representatives to appear at the next court event by telephone.

8. The Respondent father shall file and serve any Response to the Application in a Case filed and any affidavit material upon which he wishes to rely by 5.00 pm on Wednesday, 4 July 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Sawer (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 198 of 2016

Ms Bowen

Applicant

And

Mr Sawer

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The reasons for the orders I have just made are as follows. 

2. On 31 July 2017, the parties agreed on parenting orders under Part VII of the Family Law Act 1975 (Cth) for their only child, who was born in 2007. Those orders provided for the child to live with the mother and to spend time with the father.

3. Today, the mother filed as a matter of urgency an Application in a Case seeking a recovery order in respect of the child. She contends the child has been taken by the father’s adult son and now rests within the care of the paternal family, despite the orders made in July 2017, presently requiring the child to live with her.

4. The mother relies upon her affidavit filed today in support of her application. In that affidavit, she deposes this is the fourth application for a recovery order she has had to make in the last two years and on each of the three previous occasions her applications have been granted. 

5. Most recently, in April 2018, I heard and determined between the parties a contravention application brought against the father by the mother and a dispute over the need for alteration of the underlying parenting orders. Those disputes between the parties were determined by me on 27 April 2018.

6. At that time, the father entered into several good behaviour bonds to ensure his continuing compliance with the parenting orders made in July 2017. Now, notwithstanding those good behaviour bonds have only been in existence for the last six weeks, the mother has been motivated to bring another application for a recovery order. 

7. In short compass, the facts are as follows. On 26 June 2018, the child attended her swimming training in the afternoon after school. At or about 5 pm that day the child was escorted away from the swimming pool by her elder half-sibling, who is the father’s eldest son. 

8. Even though the child was due to return home with the mother at that time, over her remonstrations, the husband’s eldest son took the child with him. She has not since been returned. In the last 48 hours, the mother has exchanged text messages with both the father and his eldest son over the child’s return, but she has still not been returned to the mother.

9. The father, who appeared today by telephone, did not dispute that the child should presently be in the mother’s care pursuant to the orders made in July 2017. When directly asked, the father informed the Court that the child was not presently with him, but he did know of her location and he refused to divulge it.  Self-evidently, the child is not in the custody of the mother, notwithstanding that the orders made in July 2017 presently require it.

10. The mother pressed her application for the making of a recovery order which would enforce the child’s return to her. The father opposed the recovery order being made on the basis of an assertion that the child’s best interests demand that the child remain in his temporary care.

11. I cannot accede to the father’s application principally for two reasons. First, he agreed less than 12 months ago that the child’s best interests were for her to live with the mother and only spend time with him. Secondly, his apparent retention of the child, either directly or indirectly through his adult children, has not been sanctioned by him approaching the Court for any amendment to the underlying parenting orders, asserting the child’s best interest demand such an outcome. He has acted unilaterally and his mere assertion that the child’s best interests require that she now live with him is not probative.

12. Given the unfortunate history of acrimony between the parties, there is no reasonable option but to make a recovery order on an interim basis, enforcing the orders which the parties agreed suited the child’s best interests less than a year ago.

13. However, since the father has only received very recent notice of this application, he is desirous of obtaining legal advice and representation. He has not yet had sufficient opportunity to obtain such advice and representation and he would also like to place before the Court the evidence to verify his assertion about the child’s best interests being reflected by a different residential arrangement. It is appropriate that the proceedings be adjourned for a very short period to enable those things to transpire. 

14. Today is Thursday, 28 June 2018. The father was offered a hearing on either Friday 6 July or Wednesday 18 July 2018 and he selected the former. In accordance with his request, the mother’s application is listed for further hearing on Friday 6 July 2018 and, to afford the mother procedural fairness, the father is required to file and serve upon her about 36 hours in advance any Response to her Application in a Case and the affidavit material upon which he relies.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 June 2018.

Associate: 

Date:  20 July 2018