Bradshaw & Bradshaw (No 5)
[2024] FedCFamC1F 79
•20 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bradshaw & Bradshaw (No 5) [2024] FedCFamC1F 79
File number(s): NCC 535 of 2022 Judgment of: SCHONELL J Date of judgment: 20 February 2024 Catchwords: FAMILY LAW – REVIEW – PARENTING – Where final parenting orders provided for the mother to have sole parental responsibility and for the child to live her – Where the child did not live with the mother in compliance with the orders – Where the child was returned to the mother’s care pursuant to a recovery order made by a senior judicial registrar – Where the father filed an application for review – Where the father also sought that the final parenting orders be set aside and that orders be made for the child to live with him – Where the Court is not satisfied that there has been a change of circumstances subsequent to the making of the final orders – Orders made for the child to be returned to the mother and, should the father fail to do so, for the issuance of another recovery order – Father’s application dismissed.
FAMILY LAW – REVIEW – PARENTING – Wishes of the child – Where the child is 13 years old – Where final parenting orders provide that the child live with the mother – Where the child wants to live with the father – Where the child claimed that the mother psychologically abused him – Where the mother was the primary carer until separation – Where the trial judge found that it is improbable a meaningful relationship with the mother will be achievable if the child remained living with the father – Where the trial judge found that the father’s behaviour was likely to influence the child to reject the mother and that he was unsuitable as a residential carer for the child – Where the father seeks that the final parenting orders be set aside – Where it was found that the primary judge took into account the views of the child and determined they were not dispositive, notwithstanding his age and maturity – Father’s application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZL, 67U
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Adamson & Adamson [2018] FamCA 523
Ansah v Ansah [1977] 2 All ER 638
Bradshaw & Bradshaw(No 3) [2023] FedCFamC1F 510
Carriel & Lendrum (2015) FLC 93-640
Eaby & Speelman (2015) FLC 93-654
Freeman and Freeman (1987) FLC 91-857
Goode & Goode (2006) FLC 93-286
Isles & Nelissen [2022] FedCFamCIA 97
Langmeil & Grange [2013] FamCAFC 31
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348
Rice and Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Stowe and Stowe (1981) FLC 91-027
Trewitt & Brock [2021] FedCFamC1A 9
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 84 Date of hearing: 19 February 2024 Place: Sydney Solicitor for the Applicant: Mr White, Powe & White Family Lawyers Solicitor for the Respondent: Ms Gillard, Gillard Family Lawyers Solicitor for the ICL: Mr Leishman, Legal Aid NSW ORDERS
NCC 535 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BRADSHAW
Applicant
AND: MS BRADSHAW
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Orders made 29 January 2024 are discharged.
2.At 4.00 pm on 21 February 2024, or such earlier time as agreed in writing between the parties, the father must deliver the child X born 2010 ("the child") to the mother at the McDonalds Restaurant at Suburb E, NSW.
3.The following persons are authorised and directed to find and recover, by force if necessary, the child and return the child to the mother and for that purpose each of those persons may stop and search any vehicle, vessel or aircraft or 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:
(a)The Marshall of the Federal Circuit and Family Court of Australia (Division 1);
(b)All officers of the Australian Federal Police Force;
(c)All officers of State and Territory Police Forces or Services.
4.Order 3 herein commences at 4.15 pm on 21 February 2024 if the child is not delivered to the mother as required by and in compliance with Order 2 herein, and if commenced in those circumstances remains operative for 12 months from that date.
5.Ms Peregrine is joined as a second respondent to these proceedings.
6.Ms Peregrine forthwith do all acts and things to cause the child to be returned to the mother should the child at any time be in, or come into, her care.
7.The parties and/or Ms Peregrine have liberty to apply on 48 hours' written notice to my Associate to seek to be heard as to her removal as a party and/or to be relieved of the obligation imposed by Order 6.
8.The mother shall cause a copy of these Orders to be served on Ms Peregrine.
9.The mother has liberty to provide to the NSW Police, the Australian Federal Police, and the Department of Communities and Justice a copy of these Reasons and Orders, and the Orders and Reasons made 26 May 2023.
10.The Application for Review filed 30 January 2024 is dismissed.
11.In the event that any party has an application for costs arising out of the hearing held on 19 February 2024 they are to file with my Associate within seven days written submissions as to costs. In the event that any such application is made and is opposed then the party in reply has a further seven days in which to file written submissions. Submissions are to be limited to 10 pages.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradshaw & Bradshaw has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
On 26 May 2023, following a contested hearing, orders were made on a final basis that the mother have sole parental responsibility for the parties’ child, X (“the child”) born 2010; that the child live with her; for 3 months spend no time with the father and then resume time with the father, culminating in time each alternate weekend and during the school holidays (“final orders”).
On 29 January 2024, a senior judicial registrar made a recovery order pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”).
The recovery order was executed by the New South Wales Police in early 2024 and the child was returned to the mother. The next day the child left the mother’s care and now resides in the care of a Ms Peregrine, contrary to the final orders.
On 30 January 2024 the father filed an Application for Review of the Registrar’s Orders made 29 January 2024, which initially came before the Court on 5 February 2024 and was subsequently adjourned for hearing to 19 February 2024.
As the Senior Judicial Registrar’s powers to make orders arises by way of delegated legislation, jurisprudence and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) provide that a hearing on review must proceed as a hearing de novo.
DOCUMENTS RELIED UPON BY THE PARTIES
The mother relied upon the following documents:
(1)Affidavit of mother filed 16 February 2024;
(2)Affidavit of Mr P filed 2 February 2024; and
(3)Case Outline document.
The father relied upon the following documents:
(1)Application for Review filed 30 January 2024;
(2)Affidavit of father filed 16 February 2024; and
(3)Case Outline document filed 16 February 2024.
The Independent Children’s Lawyer (“ICL”) relied upon a Case Outline document.
Each of the parties referenced the Reasons for Judgment delivered 26 May 2023 (“Judgment”) and various documents in the mother’s tender bundle.
The mother sought to rely upon an affidavit sworn by her and filed 19 February 2024. The father took objection to the lateness and content of the affidavit. The affidavit was served late and outside the directions for trial and the mother was not granted leave to rely upon it. The father sought to rely upon the Family Report prepared for the final hearing. In circumstances where the trial judge’s Reasons for Judgment post-date the report and were relied upon by his Honour, I indicated to the solicitor for the father that I failed to see the relevance of any matter contained in the report, other than as addressed in the Judgment. The father’s solicitor made no submissions referencing the report other than as addressed in the Judgment.
PROPOSALS OF THE PARTIES
The competing applications of the parties, as modified by the orders they sought in their respective case outlines, devolved as follows:
(a)on the part of the mother, she sought orders that the father deliver the child to the Registry of the Court and, failing the father’s compliance, a recovery order issue pursuant. The mother also sought that the Orders made 26 May 2023 providing for time between the child and his father be suspended for a month, and that thereafter the father commence spending supervised time with the child for a period of two hours once a week, at his cost. The mother otherwise sought orders pursuant to ss 68B and 68C of the Act in relation to herself and the child.
(b)the father sought to set aside the Orders made 26 May 2023, sought that he have sole parental responsibility for the child and that the child live with him and spend time with the mother in accordance with the child’s wishes. The father alternatively proposed that the operation of all orders be suspended.
(c)the ICL sought orders that the child be returned to the mother and, failing the child being returned, a recovery order issue. The ICL did not seek any orders suspending the father’s time with the child or the imposition of supervision.
SUBMISSIONS OF THE MOTHER
The mother relied upon various paragraphs of the Judgment. She submitted that the matter was at a crossroads and that if orders were made for the child to live with the father, the mother would have no relationship with the child. The mother submitted that the father is entirely in control of the situation and that the father is involved in the child’s removal from her care on each occasion that the child has left her care. The mother further submits that the father has taken no steps to attempt to return the child to her care despite the existence of orders to that effect. The mother submitted that the father is either incapable or unwilling to return the child to her care. The mother placed some weight on the absence of any evidence from Ms Peregrine as to how the child came into her care, her involvement in the circumstances of the child coming into her care, and the extent of communications between her and the father.
The mother’s solicitor submitted that a copy of the Judgment should be provided to the Department of Communities and Justice (“DCJ”) as well as the New South Wales Police, given the difficulties that the mother has had in relation to obtaining assistance from them.
SUBMISSIONS OF THE FATHER
The father’s solicitor submitted that if there had been a successful transition of the child to the mother as contemplated by the Orders of 26 May 2023, then the child would not have run away. The fact that the child has left the mother’s care indicates that it was an unsuccessful transition. He further submitted that a pre-condition to the success of the transition was that the mother would, in a sophisticated and sensitive way, transition the child to her care. The father’s solicitor submitted that what the mother did was neither sensitive nor sophisticated. The father’s solicitor referred to documents produced by New South Wales Police that suggest that the mother, in some way or other, sought to have the child charged with assault. He submitted that this, in part, hardened the child’s attitude towards the mother. He submitted that it is the mother’s attitude and behaviours towards the child that is causing the child to reject the mother and causing the child to want to live with the father.
The father’s solicitor denied that the father has been involved in the child’s running away and contended that the child runs away as a consequence of the breakdown of the child’s relationship with the mother, for which she accepts no responsibility. The father’s solicitor placed significant weight on the repeated assertions by the child that the child does not wish to live with the mother and that he has told that to police and the DCJ. The father’s solicitor submitted that the police believe there is a risk of harm in returning the child to the mother, and that documents from the DCJ similarly identify there is such a risk. The father’s solicitor placed weight also on statements by the child that he might harm himself including a notation in the DCJ records: “[X] has end of life ideation but nothing immediate” (Records produced by the DCJ pursuant to s 69ZW of the Act, pp 49, 56, 68, 69, 75, 81).
The father’s solicitor emphasized the child’s repeated statements that he does not want to live with the mother, that he will run away, and that there are risks to the child’s welfare and safety in such actions.
SUBMISSIONS OF THE ICL
The ICL also referenced parts of the Judgment. He indicated that the child had been brought to his office by Ms Peregrine and that he had spoken to the child. He said the child expressed views consistent with what was recorded in the Judgment. The child told the ICL that he doesn’t want to live with his mother; wants to live with Ms Peregrine if he can’t live with his father; doesn’t want to stay at his current school but would see a psychologist; and that if he was returned to the mother he would run away again. He told the ICL that he would rather be in foster care or “juvie” than living in the care of his mother.
The ICL submitted that the Court needed to make a recovery order in the event the child was not returned, but no other order. The ICL submitted that an order of the type sought by the mother for a suspension of time could be interpreted by the child as some punitive act instigated by his mother, which would only worsen the relationship between the child and his mother.
BACKGROUND
To provide some context to the making of my orders it is important to have regard to the background as identified in the Judgment, and the events that happened subsequent to that date.
Relevantly to the determination of this application are the following paragraphs from the Judgment where his Honour observes:
39. The parties have quite different perceptions about the quality of the child’s relationship with the mother before the marital separation in February 2022. The mother believes her relationship with the child was close and loving, just like the child’s relationship with the father, but the father apparently believes that was only the case until a few years ago, before it then deteriorated. The father’s opinion evidence is rejected. For reasons yet to be explored, his opinions and beliefs about the child and the mother are found to be seriously flawed and unreliable. Until separation, the mother was the child’s primary carer, as the father devoted much of his time to […] work and business interests. Most probably, the child enjoyed a warm, loving and meaningful relationship with the mother – at least until the parties separated and the child remained in the father’s primary care, susceptible to the full force of his adverse views about the mother.
40. The father’s belief the child is utterly unaffected by his estrangement from the mother is either disingenuous or demonstrates his lack of insight. It must be one or the other. He must know the child revealed to a school counsellor not long after the parties’ separation that he wanted to see the mother without interference by others, but since then the child has expressed resistance to seeing the mother at all, for which the most likely rational explanation is that he perceives the father is against it and he wants to act consistently with the father’s expectations.
41. The father’s motivation and insight will be discussed at greater length as an “additional consideration” within the context of s 60CC(3) of the Act but, for the present purpose of evaluating the “primary considerations” prescribed by the Act, the child would benefit from the restoration of his former meaningful relationship with the mother. It is quite improbable that will ever be achievable if the child remains living with the father. If he is to derive benefit from meaningful relationships with both parents, that is only feasible if he lives with the mother.
…
44. The single expert said in her report there would be “ongoing and lasting consequences” for the child’s “future social, emotional and psychological development” if his alignment with the father against the mother is not rectified. She elaborated her opinions to mean the child will likely experience significant feelings of guilt, self-blame, anxiety and remorse. He might also experience anger at the situation, blame the father for it, and then eventually resent the father. The child might also experience distorted moral identity, difficulties with inter-personal relationships, and endure mental health complications. Such opinion evidence was endorsed by the single expert during cross-examination.
…
47. The single expert’s opinion evidence is accepted and relied upon as carrying significant probative weight. An inference arises relatively easily from such evidence: the child will likely suffer serious psychological harm if the current situation continues to prevail. The father has allowed a situation to develop which is “abusive” to the child. The child needs protection from the risk of harm which will likely arise from continuous subjection to such abuse.
…
49. It was entirely uncontroversial that the child has repeatedly expressed his desire not to see or communicate with the mother and he has acted accordingly. The controversy centred on why he expresses those views and acts that way.
50. The father contended the child is only expressing his own feelings, uncontaminated by anything said or done by him. In support of that contention, the father pointed to how the child has independently expressed his views to others like the school counsellor and the single expert when he was not present.
…
54. …Thereafter, during May 2022, the child’s demeanour towards the mother was either hostile or detached. He has hardly spent any time with the mother since May 2022. He refused to see the mother in the single expert’s presence in November 2022, told the single expert he would not comply with orders requiring him to spend time with her, and told the single expert he could not imagine any change of mind.
55. The single expert found the child completely aligned with the father. The single expert opined the child’s behaviour was “deeply influenced” by the father’s behaviour, which opinion evidence is accepted as correct.
56. The child is of sufficient age and maturity that his expressed views must carry some weight, but his views are not dispositive. Most probably, the adverse views expressed by the child about the mother are an artifice. He must feel that he cannot show any inclination to retain his relationship with the mother without offending the father and must be tormented by feeling obliged to outwardly reject a parent whom he loves deeply. It is most likely that, reprieved of the pressure exerted upon him by the father to reject the mother, the child will abandon the artifice and revert to the former harmonious relationship he enjoyed with her with an immense sense of relief. That might not happen immediately though.
…
61. As the single expert opined, the success of such a residential transition would hinge upon several factors: the mother’s capacity to manage the child in a sensitive and sophisticated way; the child’s memory of a loving relationship with her; and his freedom from further influence by the father.
…
66. The mother and the ICL proposed a moratorium period of three months during which there should be no contact of any sort between the child and the father. The single expert said in cross-examination she recommended that the child should live with the mother and there was “no particular magic” about the length of the moratorium, but it needed to be long enough for the child to re-form his own opinions about the mother.
67. The evidence suggests it is more likely than not that the child’s initial objection to the reversal of his residence would subside over a period of weeks, though it would likely be a bumpy ride for the child and the mother during that period.
68. On the other hand, if the child remains in the father’s residential care, he will have no contact with the mother and his relationship with her will wither. His continuing rejection of the mother and his indefinite separation from her is likely to cause him internal feelings of despair, even if he does not outwardly express that sentiment. The emotional effect upon him in the long-term is likely to be deleterious, in the manner opined by the single expert.
…
78. Since the marital separation in February 2022, the father has relentlessly involved the child in the parental dispute. He derides the mother’s intelligence and often denigrates her. He has also discussed the mother’s affair in explicit terms with other adults in the child’s presence, so much so that the child criticised the mother because she “opened [her] legs”. The mother said in cross-examination such vile condemnation occurred in the father’s presence, but he did not admonish the child for it. The father also admitted having discussed the parties’ financial dispute with and in the child’s presence. He also acknowledged the child had been allowed to read much of the correspondence exchanged between the parties’ lawyers. There is no other rational explanation for why the child would raise the financial dispute and his supposed loss of inheritance in conversation with other adults like the school counsellor and the mother. The child also complained about the mother to the single expert in terms which suggest his engagement by the father in the parental dispute.
79. The father also directly engaged the child in the litigation. The letter of complaint composed by the child about the ICL was most probably the father’s idea. The father also probably encouraged the child to take voluminous notes to his appointment with the single expert. The father even admitted in cross-examination that he took the child out of school to an appointment with a solicitor with the intention of having the solicitor act independently for the child in the proceedings.
…
83. The single expert regarded the father as rigid, fixated, and lacking insight. She was concerned by the manner in which he had involved the child in the dispute. She was also concerned about the child not being able to reality-test the negative views of the mother to which he is perpetually exposed by the father, fearing the child could not extricate himself from his enmeshment with the father. Currently, the child has been induced to believe his future is tied to the father and is conditional upon his rejection of the mother, which binds him in a loyalty conflict. Rejection of the mother gives the child temporary respite from stress but will likely lead to long-term adverse psychological consequences. The single expert’s opinion evidence is accepted as being correct and she was rightly concerned about the adverse effects upon the child.
…
85. The father’s capacity to meet the child’s emotional needs is so impaired that he is not a suitable candidate for the role of residential parent. If the child lives with him, he will lose his valuable relationship with the mother. Moreover, his constant exposure to the father’s rigid narrative and gruff role-modelling will likely cause the child to grow into an inflexible and isolated adult with a disrespectful attitude to women.
Section 60CC(3)(l)
86. If the child is moved to live with the mother, at least in the initial phase of the transition, it is highly likely he will demonstrate resistance, as the single expert hypothesised. He might even try to abscond, though the chance of that is diminished if he realises he is living with the mother in a rural location, without money, without any means of electronic communication, without any means of transport, and some kilometres distant from the neighbouring property.
87. In any event, there is a heightened chance of more litigation in the nature of enforcement or contravention proceedings if the child’s residence is reversed and he absconds. The father’s proposal is much less likely to engender further litigation.
…
94. The child should immediately move to live with the mother. In summary, the reasons for that decision are:
(a) he cannot derive benefit from meaningful relationships with both parents whilst ever he lives with the father (s 60CC(2)(a));
(b) he needs protection from the psychological harm he experiences by subjection or exposure to the father’s emotionally abusive conduct (s 60CC(2)(b));
(c) the father does not have the capacity to meet the child’s emotional needs (s 60CC(3)(f)) and displays a poor attitude to the responsibilities of parenthood (s 60CC(3)(i)); and
(d) the child will likely have more adult supports if living with the mother (s 60CC(3)(b)).
His Honour subsequently made orders for the child to live with the mother, for the mother to have sole parental responsibility and that for a period of three months the child have no contact with his father. It is not controversial that the child lived with the mother during the moratorium period and did not have contact with the father.
The father filed a Notice of Appeal and sought a stay of his Honour’s orders. A stay was refused, and the father subsequently abandoned his appeal.
The mother contends in her affidavit that the child settled well with her during the moratorium period. Evidence from the mother’s witness, Mr P, recalls that the child slowly responded to the mother. He says that he never tried to run away or threaten to run away and seemingly enjoyed his time.
The mother says that time with the father recommenced on 30 August 2023. The mother gives evidence that on 22 October 2023, she became aware that the child had changed her name in his phone from “Mum” to “[Ms Bradshaw]”. She gives evidence that when she asked the child why it happened, he said he “didn’t know”. When she asked him whether his father had told him to change it, he did not respond.
The mother gives evidence that when the child came back to her from having been with his father, he was withdrawn. The mother says that in November 2023, at a time when the child was meant to be at school, she received notice from the school that the child was not at school. She tried to phone the child, but his telephone would not answer and ultimately telephoned the police to report the child was missing. The mother says that her solicitor was subsequently contacted and advised that the child had “caught a bus to [J Region]” and then “someone” called the father to let him know that the child was in J Region. The mother says this person was Ms Peregrine. The mother says that Ms Peregrine is a person well-known to the father. Her significance in these proceedings will be addressed further.
On 3 November 2023 the mother commenced recovery proceedings and on 4 November 2023 the father’s solicitor contacted the mother’s solicitor and advised that the father would return the child to the mother if the mother withdrew her recovery application and did not seek a costs order.
The father says that he was contacted by Ms Peregrine in November 2023, who advised him that the child was in her care and that she did not know what to do. The father says Ms Peregrine then went to J Region Police Station. The father says in his affidavit that Ms Peregrine of her own volition concluded that the child needed to see his father. Ms Peregrine then brought the child to see the father.
At no stage did Ms Peregrine seek to return the child to the mother’s care nor did the father direct her to do so.
The child was eventually returned to school a few days later. It is clear from this incident that the father is able to have the child do that which he expects the child to, or asks the child to, do.
In December 2023 the child left the mother’s home. Upon discovering the child was missing, the mother contacted City O Police and was subsequently advised that the child had come to the police station claiming that his mother had psychologically abused him. Documents referenced in the mother’s tender bundle seem to suggest that the child attended City O Police as a consequence of receiving advice from the Kids’ Helpline. The father denies any involvement in the child leaving the mother’s home on this occasion (or for that matter on any other occasion).
The child informed the police that he did not wish to return to the mother’s care, and the police indicated to the mother that the only person the child would go to was Ms Peregrine. The mother gives evidence that she agreed, albeit it would appear reluctantly, for the child to spend four days and three nights with Ms Peregrine. The mother says that over that subsequent period the child informed her that he wanted to stay with his father.
Ultimately the mother again returned to the police and was advised that Ms Peregrine had said that the mother should come to her property to collect the child. Upon attending at the property, the child advised the mother that he would not leave. The mother says that Ms Peregrine would not let the child leave with her so she rang the police again who advised her that she would need to go to court to get a recovery order.
The child remained in the care of Ms Peregrine from December 2023 until the child went into the father’s care on 1 January 2024 pursuant to the court orders.
There is no evidence that the father at any time has instructed Ms Peregrine to return the child to the mother.
The child came into the father’s care pursuant to the final orders between 1 and 8 January 2024. At the conclusion of the father’s time the child should have been returned to the mother. The father gives no evidence of any attempt on 8 January 2024 to return the child to the mother.
It is not in issue that on 8 January 2024 the child returned to the care of Ms Peregrine.
As a consequence of the failure on the part of the father to ensure that the child was in the mother’s care, the mother approached the Court for a recovery order.
At the hearing before a Senior Judicial Registrar on 29 January 2024, the father opposed the making of a recovery order. The father sought similar orders before the Senior Judicial Registrar as he did on this hearing.
The Senior Judicial Registrar made a recovery order which was executed on 1 February 2024, when the child was returned to the mother. The father is highly critical of the fact that a number of police cars attended at the residence of Ms Peregrine to execute the recovery order. The father’s submissions seeks in some way or other to criticise the mother for creating such a circumstance. The event arises entirely as a consequence of the child not being returned to the care of the mother. It is that conduct and that act that gave rise to the intervention by the police, and it is not as a consequence of the mother seeking compliance with orders made following a contested hearing.
The evidence reveals, however, that the child remained with the mother only briefly and thereafter left her home the next day.
The father says that he received a telephone call from the child at about 6.30pm to say that he had run away. The father was then contacted by the police, who sought information from him as to where the child was. The father in his affidavit contends that he told the police that he did not know where the child was. Records produced by the New South Wales Police in the mother’s tender bundle record that “the father has had conversation with the MP since he has absconded his mother’s care. The father is denying this conversation due to family law court orders. The father is not assisting Police with locating the MP” (Records produced by the New South Wales Police pursuant to s 69ZW of the Act, p 48). The MP is a reference to the child.
The father gives no evidence as to how it is that the child came into the care of Ms Peregrine. The child has continued to remain in the care of Ms Peregrine. There is no evidence advanced by the father of any attempts by him to advise Ms Peregrine that the child should be returned to the mother.
There is no evidence adduced in the father’s case from Ms Peregrine.
APPLICABLE LAW
I have read all of the evidence relied on in the proceedings and listened to the submissions, but do not propose to nor am I required to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62.… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
These are interlocutory proceedings and consequently I am unable to make findings on the disputed facts of which there are many.
Consistent with the provisions of s 69ZL of the Act, I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts. However, just because I am unable to determine or resolve a disputed fact and/or assertion does not mean that I ignore the allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to "probabilities" does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, "possibilities" are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those "possibilities".
His Honour’s observations have been expanded upon by the Full Court in Isles & Nelissen [2022] FedCFamCIA 97 wherein their Honours observed that the assessment of a future unacceptable risk of harm is a predictive exercise that is not established on the balance of probabilities, albeit it may be informed by past factual findings made on that standard.
Parenting proceedings are governed by Pt VII of the Act.
In making a parenting order, s 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in the child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
It has been clearly articulated in numerous authorities that the Court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen, or some material factor was not disclosed at the previous hearing) which would justify the reversal (see Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) at 78,095). It is sometimes inelegantly described as the rule in Rice and Asplund.
The so-called rule rests upon the indisputable proposition that continuous litigation about the living arrangements of children is inimical to their welfare and contrary to their best interest (Langmeil & Grange [2013] FamCAFC 31).
In Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470 – 76-471:
… Once the court … has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
Such application can be made at either a preliminary stage in the proceedings “on the papers” or after hearing all of the evidence including cross-examination.
As observed in SPS & PLS (2008) FLC 93-363:
48. …
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”
…
73.There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
The applications of both the mother and the father invite a reconsideration of the living arrangements of the child, notwithstanding a court having determined on a final basis less than 12 months ago what those living arrangements should be.
It is not contentious that a court is not limited in its determination to the proposals advanced by the parties. Here the ICL proposed that beyond the making of a recovery order, there be no change to the existing orders.
Consequently, a determination whether to make the orders proposed by the mother or father would involve a consideration as to whether there has been a change of circumstances established. If the Court is not satisfied there has been such a change, then a dismissal of their respective applications, in so far as it sought such a change, would be a dismissal on Rice and Asplund grounds. Such a determination is not a parenting order. Accordingly, it does not involve a consideration of, or adoption of, the same pathway as the making of a parenting order.
In Carriel & Lendrum (2015) FLC 93-640, the Full Court observed:
56.…where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.
57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
While in Trewitt & Brock [2021] FedCFamC1A 9, the Full Court observed:
29.The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.
30.Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.
CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS
I am not satisfied that there has been a change of circumstances sufficient to warrant a reconsideration of the living or spend time arrangements of the child.
The father urged the Court to set aside the existing arrangements suggesting that the orders made needed to be seen within the context of his Honour’s observations at paragraph 61 of the Judgment. The father submitted that it was clear that the orders required the mother to successfully transition the child into her care and that it is self-evident that did not occur, evidenced by the problems during the period of time in which the child was in the mother’s sole care and as a consequence of subsequent events. To make such a determination that the moratorium was not as envisaged by the mother, or was not as successful as the mother suggests, would require a rejection of the evidence of the mother. The sole foundation for the father’s case rests on the evidence of the child. The evidence of the mother and Mr P conflicts with that of the child. In circumstances where I am unable to make findings, the first limb of the father’s argument must fail. The father also points to, as a basis for a change of the living arrangements, the repeated statements of the child that he will not live with the mother and that he will run away. These statements have been made to, amongst others, the police; reported to DCJ; and made to the ICL. The father contends that this is a consequence of the mother’s failed capacity to be able to engage the child, being a pre-condition to the making of the Orders of 26 May 2023, and that the Court should make new orders as sought by him.
I am not satisfied that this represents a change of circumstances. It is quite clear from a reading of the Judgment that the child has, for a long time, shown an opposition to residing in his mother’s care and has said to numerous people that he does not want live in his mother’s care. I note that the trial judge concluded that the father’s behaviour was likely to influence the child to reject the mother and that he was unsuitable as a residential parent. I was not taken to any new fact or evidence that would invite a conclusion as to his suitability contrary to that found by his Honour.
The child absconded from the mother’s care prior to the making of Orders on 26 May 2023. Thus, the child leaving the mother’s care is not a new fact or circumstance. The evidence of the single expert, accepted by the trial judge, was that there were ongoing and lasting consequences for the child’s future social, emotional, and psychological development if the alignment with his father against the mother was not rectified. There is no evidence to suggest that such alignment would be rectified by the child being placed in the father’s primary care. His Honour also considered the views of the child and determined they were, despite his age and maturity, not dispositive of the application.
Nor is the evidence that the child is at some psychological risk if returned to the mother a new circumstance. It is clear from a reading of the Judgment as a whole that the child faces many psychological risks, but they are heightened in the care of the father. His Honour found that the child needed protection from the psychological harm presented by the father. An examination of the material relied upon in the tender bundle does not reveal who made the assessment that the child was at some psychological risk. There is no evidence as to whether the person who made the assessment had any qualifications to express the opinion that they did, or the source of the information that gives rise to the opinion. There is no evidence of the father or Ms Peregrine acting on such asserted risk by taking the child to a doctor, psychologist, or counsellor. Clearly, they do not regard the risk as high otherwise one would assume, acting responsibly, they would be proactive. Either way, this is not a new circumstance as is made clear at paragraph 140 of the father’s affidavit.
The mother’s application for suspension of time because the child has not been returned is likewise not a change of circumstance, given that it arises as a consequence of a longstanding attitude expressed by the child. On one view of the evidence, the child has already been prevented from having a relationship with the father given he has not seen his father since 8 January 2024. I accept the ICL’s submission that given the child’s alignment against the mother, the child being restrained or restricted from spending time with the father is likely at this stage to be counterproductive to the child remaining with the mother.
That said, if there is a repeat of such behaviour by the child, a subsequent court may reconsider such an application including either a longer moratorium or a complete discharge of orders that the child spend time with the father.
Consequently, I am not satisfied that there is any new fact or circumstance that has arisen subsequent to the making of the Orders on 26 May 2023 that invites, at this stage, a reconsideration of the final parenting orders.
I am satisfied, however, that orders should be made for the child to be returned to the mother. In the event that the father is incapable or unable to do so, a recovery order should issue. The Court is empowered to make such recovery order as it considers proper, with the best interests of the child the paramount consideration.
The Orders of 26 May 2023 have not been varied or set aside, and remain orders that are in the best interests of the child. I have had regard to the Judgment and all of the relevant s 60CC factors and I am satisfied that a recovery order is necessary in the event that the father fails to cause the child’s return to the mother. It should be made abundantly clear that such order arises entirely as a consequence of the failure on the part of the father to exercise his parental authority consistent with the orders made by the Court. It is no excuse that he cannot exercise parental authority because the child presently resides with his friend. If he does not, and a recovery order issues, it is not as a consequence of any failings on the part of the mother.
In circumstances where the father is either unable or unwilling to exercise his parental authority to cause the return of the child to the mother, then it is necessary to make orders that direct Ms Peregrine to return the child to the mother. The child has remained in her care contrary to final orders. The father knows that the child is in her care contrary to orders of this Court.
The child has continued to remain in Ms Peregrine’s care contrary to orders and there is no evidence that Ms Peregrine, who must be conscious of the orders, has taken any steps to return the child to the mother.
In circumstances where the Court has determined that the child should be in the care of the mother but is in the care of a third party, then the Court needs to take steps to protect the integrity of its processes and to ensure compliance with its orders.
In Stowe and Stowe (1981) FLC 91-027 (“Stowe”), the Full Court of the then Family Court of Australia made the following observations at 76,258–76,259:
Ex parte orders are dealt with in reg. 42. That regulation makes it clear that ex parte orders are to operate only until a specified time or (as in the present case) until further order of the Court (para. (5)). The Court is empowered to give directions as to the service of the order and the hearing of an application for a further order (para. (6)). Regulation 42 was considered by the Full Court in the case of Sieling (1979) FLC 90-627, where reference was made, with approval, to Ansah (1977) 2 W.L.R. 760. In that case, the Court of Appeal emphasised that if an order was made ex parte it should be limited in time to the shortest possible period which must elapse before a preliminary hearing could be arranged. It is implicit in the decisions of Sieling (supra) and Ansah (supra) that wherever possible short notice of the proceedings should be given to the respondent:
“The general principles are that the Court must be satisfied that the matter is of such urgency that the applicant’s interests (or the interests of the child) can be protected only by an immediate order. It is necessary to balance the likelihood of harm to the applicant against the hardship to the respondent of making an order without hearing him. The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity. An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature that the Court cannot wail even the period of time necessary for short service.” (Sieling (1979) FLC 90-627 at p. 78,254.)
In those limited circumstances where it is necessary to make an ex parte order, the onus rests upon the applicant for the injunction both at the ex parte stage and at the later hearing of the matter to satisfy the Court that the circumstances justify the making and continuation of the order. This is so irrespective of whether the respondent formally applies to set aside the order. Counsel for the appellant husband submitted – correctly in our view – that the Court's discretion could miscarry if the onus were put upon the respondent to satisfy the Court that the order should be discharged.
Thus, in making an order ex parte, the Court is required to have regard to the nature and imminence of risk of harm.
To proceed in the absence of and without notice is an extraordinary thing for a court to do. The circumstances in which a court does so have in the authorities been variously described as ‘anomalies’ or ‘exceptional’. The Full Court in Stowe as referred to above, cited with approval the observations of the United Kingdom Court of Appeal in Ansah v Ansah [1977] 2 All ER 638. Their Lord Justices observations bear repeating, where they stated at 642:
Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party (see Craig v Kanseen [1943] 1 KB 256 at 262). Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately. Such circumstances do undoubtedly tend to occur more frequently in family disputes than in other types of litigation … but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the courts. Such cases should be extremely rare … Circumstances, of course, may arise when prior notice cannot be given to the other side; for example, cases where one parent has disappeared with the children, or a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fully satisfied that such protection is necessary.
I am satisfied that the circumstances of this matter are exceptional and that there is a basis established on the evidence to which I have earlier referred to proceed ex parte against Ms Peregrine, requiring Ms Peregrine to cause the child to be returned to the mother should the child remain in her care or come into her care at any time.
In circumstances where she has not been given the opportunity to be heard on this order, I intend to grant her and the parties liberty to apply on 48 hours’ written notice to my chambers to seek to her be removed as a party and/or relieved of the obligations of this order.
The mother made an oral application to release the Judgment to the NSW Police and the DCJ, given difficulties she asserted she was having with implementation of the orders. Neither the father’s solicitor or the ICL made any submissions in opposition to such an order. I am satisfied that it is proper to make such an order.
I accordingly will make the following orders to give effect to my reasons.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 21 February 2024
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