CHIAO & WEN
[2014] FamCA 1
FAMILY COURT OF AUSTRALIA
| CHIAO & WEN | [2014] FamCA 1 |
| FAMILY LAW – CHILDREN – Recovery Order – Commonwealth Information Order – father sought orders following repeated non attendances by mother – location of mother and child unknown – family reports indicate child reluctant to spend time with father – child has not seen father for two years – best interests of the child – orders granted. FAMILY LAW – CHILDREN – Interim Orders – time child spends with – best interests of the child – upon recovery child to spend time with father during the period of adjournment. |
Family Law Act 1975 (Cth) s 67N, 67P, 67U, 67V, 68
| Hall & Hall (1979) FLC 90-713 Harris & Harris (1977) FLC 90-276 Wood & Wood (1976) FLC 90-098 |
| APPLICANT: | Mr Chiao |
| RESPONDENT: | Ms Wen |
| INDEPENDENT CHILDREN’S LAWYER: | SE Lawyers |
| FILE NUMBER: | ADC | 3665 | of | 2011 |
| DATE DELIVERED: | 7 January 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 23 December 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hemsley |
| SOLICITOR FOR THE APPLICANT: | Paul G Doube |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dibden |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | SE Lawyers |
Orders
Pursuant to Section 67N of the Family Law Act 1975 (Cth) as amended Centrelink do provide the Registrar of this Court with information that is contained in or comes into the records of the said Department about the location of the respondent Ms Wen and the child C born … April 2002.
That pursuant to Section 67P(1)(d) of the Family Law Act 1975 (Cth) as amended leave be granted to disclose the information provided to the Registrar of this Honourable Court to the solicitors for the applicant father and to a process server engaged by him to effect service of documents on the respondent mother.
That upon receipt of the information as to the whereabouts of the said child and the said mother Ms Wen, Paul Doube Lawyers be restrained from divulging such information to the applicant father.
That upon receipt of the location of the respondent, the applicant’s solicitors forthwith attempt to serve the respondent mother with the application in a case and affidavit filed 12 December 2013, this order and a copy of the reasons for judgment.
That pursuant to Section 67U of the Act that a Recovery Order do issue authorising the taking possession of the said child C born … April 2012 and the delivery of such child to the applicant father Mr Chiao forthwith at … B Street, Suburb D, South Australia or such other place as the applicant Mr Chiao and the person effecting recovery agree to be appropriate.
The said child spend time with the father during the period of the adjournment.
That further consideration be adjourned to Tuesday 4 February 2014 at 9.15am, with liberty to vacate and relist if service has not been effected by 3 February 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chiao & Wen 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 ADELAIDE |
FILE NUMBER: ADC 3665 of 2011
| Mr Chiao |
Applicant
And
| Ms Wen |
Respondent
REASONS FOR JUDGMENT
introduction
It is not controversial to say this matter has been plagued by delays. The majority of which have been caused by the mother and her repeated failure to appear with or without representation.
The matter was listed before me following an urgent Application in a Case filed by the father on 12 December 2013. The father sought a Recovery Order, a Commonwealth Information Order and Interim Parenting Orders for the child C (“the child”) born in April 2002. There was no appearance by or on behalf of the mother. The application and affidavit were served on Centrelink on 18 December 2013. There was no appearance by or on behalf of Centrelink.
Current orders provide for the child to live with the mother and spend time with the father “as the parties agree”. Due to the deterioration of the relationship between the parties the father has not seen the child since a supervised visit at E Contact Centre in early February 2012. The present location of the mother and child is unknown.
This judgment considers whether a recovery order ought to be made in light of the history of this matter and the observations contained in the Family Reports.
background
The parties were married in April 2000 in China and moved to Australia shortly after. The parties separated in September 2002 and eventually divorced in October 2004. There is one child of the marriage, C, born in April 2002 in South Australia.
Following separation the respondent mother moved out of the matrimonial home with the child. An informal arrangement existed between the parties which provided the applicant father would spend time with the child for approximately three days each week. During late 2008, or early 2009, the arrangements were altered by the mother and the applicant father would now spend time with the child every Tuesday and Wednesday.
This arrangement continued until mid-September 2011. At that time the mother voiced a desire to relocate to Sydney with the child to pursue employment. The mother says that the father agreed to this proposal and would see the child whenever possible. The father denies the mother’s assertion and says that there was no agreement.
On 29 September 2011 the father filed an Initiating Application seeking equal shared parental responsibility and that the child spend equal time with the father. The father also sought interim orders restraining the mother from removing the child from the State.
The matter came before Federal Magistrate Simpson, as His Honour then was, on 11 October 2011. Orders were made preventing the mother from changing the child’s usual place of residence from Adelaide or its environs. The child would continue to live with the mother and spend time with the father “as the parties may agree” during the period of adjournment.
On 3 November 2011 the Independent Children’s Lawyer (“the ICL”) was appointed pursuant to s 68 of the Family Law Act 1975 (Cth) (“the Act”), and the parties registered with E Contact Centre.
The matter was again before Simpson FM on 6 December 2011. The arrangements were to continue as previously ordered however the father would now spend time with the child under the supervision of E Contact Centre. Both parties were restrained from removing the child from the country and the child was placed on the Airport Watch List.
On 23 May 2012, Simpson FM set the matter down for trial in April 2013. Orders were again made preventing the mother from altering the child’s principal place of residence from Adelaide. The child would continue to live with the mother and spend time with the father as agreed by the parties.
On 22 March 2013 the mother’s solicitors sought leave to withdraw from the file. There was no appearance by the mother. Attempts to contact the mother via telephone were unsuccessful.
On 26 March 2013 the mother again failed to appear and a warrant was issued for her arrest.
On 5 April 2013 Simpson FM made Location Orders for the mother and child after the mother, or her representative, failed to appear. There being no appearance by or on behalf of the mother the trial date was vacated on 15 April 2013.
The mother finally appeared before Simpson FM on 7 May 2013. The mother and child were ordered to attend upon a psychologist while the father was ordered not to attend the child’s school or attempt to have any contact with the child while she is at school.
The mother obtained representation for the directions hearing before Simpson FM on 20 June 2013. However, on 29 October 2013 the mother’s solicitors sought leave to withdraw from the file and the matter was transferred to the Family Court of Australia.
The mother failed to appear before Registrar Paxton on 3 December 2013. On 12 December 2013 the father filed his Application in a Case seeking orders for the location and recovery of the child. The father also sought interim parenting orders that would see the child live with the father, or alternatively, spend time with the father during the period of adjournment.
family reports
I have had the benefit of considering the following reports prepared throughout these proceedings:
·Mr F, 7 May 2012
·Dr G, 24 September 2012
·Ms H, 12 December 2013
All three writers expressed concern as to “the identity of the power in the mother-child relationship”. Mr F writes “[i]t would appear [the mother] acts to please or appease [the child]” and Dr G noted that “continuing refusals have been simplified and have assured [the child] of success and power. Such a condition is of course quite inappropriate for a young child, who must find a way to work within boundaries…”.
The reports indicate the child is reluctant to spend time with the father. Of particular concern is the report of Ms H who cancelled the therapeutic intervention fearing if she “tried to persist in overriding [the mother’s] agitation and resistance, that the child would only deepen her resistance to seeing her father and blame him further, in regard to her mother’s agitation and distress”. Mr F makes similar observations in his earlier report.
What is not clear in these reports is why the child does not wish to see her father. I was unable to discern a clear reason for the child’s reticence.
The three reports prepared in this matter are helpful but not determinative and the remarks of the Full Court in Hall & Hall (1979) FLC 90-713 are apposite:-
(a)There is no magic in a Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court of that the judge is abdicating his responsibilities. In Wood (1976) 90-098 at p75, 447; Harris & Harris (1977) FLC 90-276; (1977) 29 FLR 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist the judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of the evidence before him.
the law
Pursuant to section 67U of the Act in proceedings for a recovery order the court may make such recovery order as it thinks proper. Of course, that section is subject to section 67V which states I must regard the best interests of the child as the paramount consideration when deciding whether to make the order.
By granting the orders sought by the father I may place the child in a distressing situation. Alternatively, by dismissing the application the proceedings will inevitably return to their previous pattern of delay, and be rendered nugatory, with the child becoming estranged from her father.
If the father’s affidavits are taken at face value there was extensive contact between the child and her father following separation. Prior to October 2011 the child and father appeared to share a meaningful relationship and, despite the passing of two years, that relationship could potentially be resurrected if given the opportunity with significant benefit to the child.
The Independent Children’s Lawyer (“the ICL”) did not oppose the father’s application for a recovery order. Counsel for both the father and the ICL acknowledged the difficulty in granting such an order where this “strong willed child” has demonstrated a reluctance to see her father but noted definite action must be taken to ensure the child has an opportunity to have a meaningful relationship with both parents and to advance the proceedings.
With the best interests of the child as my paramount consideration I make orders for the recovery of the child. The child will continue to live with the mother but will spend time with the father during the period of adjournment.
conclusion
For the foregoing reasons, I make the orders that commence at page 2 of this judgment.
I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 January 2014.
Associate:
Date: 7 January 2013