Corrong and Corrong

[2009] FamCA 748

FAMILY COURT OF AUSTRALIA

CORRONG & CORRONG [2009] FamCA 748

FAMILY LAW – CHILDREN – Recovery order

Family Law Act 1975 (Cth)

APPLICANT: Ms Corrong

RESPONDENT: Mr Corrong

INDEPENDENT CHILDREN’S LAWYER: Suthers Lawyers

FILE NUMBER: BRC 6845 of 2007

DATE DELIVERED: 29 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 29 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr James

James & Co Lawyers

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms McGarvie

Suthers Lawyers

Orders

1. The father deliver the child B born … March 2000, by not later than 5.00pm today 29 July 2009, to the office of the Independent Children's Lawyer, Suthers Lawyers.

2. Should the father not deliver the said child as ordered in paragraph 1 above, a Recovery Order shall issue forthwith addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

3. Such persons are authorised and directed to find and recover the child B born … March 2000 from the father’s workplace at A near Bundaberg, or his home address of H Street, H, or such other address at which their enquiries reveal the child is situated, and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and 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.

4. The child is to be delivered, at the earliest opportunity, to the mother MS CORRONG at such address as agreed to between the person executing the Recovery Order and the Applicant.

5. The Recovery order remains in force for a period of twelve months.

IT IS FURTHER ORDERED THAT

1. The father file a Notice of Address for Service.

2. The Independent Children's Lawyer is granted leave to issue subpoenae to the Queensland Police Service and the Department of Communities (Child Safety Services) with respect of all documents relating to the assertions made by the father in respect of this matter.

3. Unless otherwise ordered, leave is granted to ALL PARTIES to INSPECT and the INDEPENDENT CHILDREN'S LAWYER ALONE to COPY documents produced pursuant to subpoenae, save in respect of any document of which an objection is taken by the recipients of any subpoena to either the production of documents or the inspection of them, or claim for privilege attaches and/or in respect of which confidentiality is claimed, in which case an application is to be brought before Justice Murphy to inspect such documents.

4. The Independent Children's Lawyer is granted leave to provide a copy of Mr Y’s report, together with any other Family Reports prepared in this matter to any Family Consultant assigned to this matter for the purpose of preparing a Child and Parenting Issues Report.

5. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED THAT

(a)The matter is listed before Registrar Green at a Directions Hearing at 12.10pm on 11 August 2009.

(b)It has, today been explained to the father, who is self-represented, the likely progress of this matter, including the fact that his concerns, expressed by phone today, can be expressed to Registrar Green and an expert Family Consultant attached to this Court, as part of the process following the Directions Hearing above.

IT IS NOTED that publication of this judgment under the pseudonym Corrong & Corrong is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 6845 of 2007

MS CORRONG

Applicant Mother

And

MR CORRONG

Respondent Father

EX TEMPORE REASONS FOR JUDGMENT

1. The wife brings an application in a case filed 21 July 2009 seeking a recovery order, among other orders.  That recovery order is in respect of the second of three children of the parties, B, born in March 2000. 

2. B spent a period of time with his father pursuant to orders made by Howard FM on 19 March 2009 and was not returned to his mother’s care. 

3. The father was served with those proceedings and represented himself by telephone before me this morning.  When I asked him when and where he intended to return B, he indicated that he held concerns about B being subject to physical mistreatment by, I gather, an adult son of the mother from a previous relationship. 

4. The father alleges that the man in question has an alcohol and drug history, and has been in gaol, and is a person of ill repute who has done physically harmful things to the child.

5. The mother denies those assertions. 

6. Importantly, for the purposes of today’s proceedings, I am advised by the father that B was taken by him to the police.  I am advised by both the father and the solicitor for the mother that the police and Department of Child Safety have undertaken investigations with respect to the allegation made by the father. 

7. They have interviewed both of the other children of the parties and the mother.  The police and the Department of Child Safety have each found, that the father’s concerns are unsubstantiated. 

8. That is a particularly important consideration in cases such as the present, which are, by definition, dealt with on the basis of preliminary material and in circumstances where there is no opportunity for the parties to be cross-examined, their respective versions tested, and the evidence form both sides to be properly analysed.

9. The allegations and counter-allegations, and the circumstances just described do not occur in a vacuum.  They occur in circumstances where these parties have clearly been in significant high conflict for a lengthy period of time. 

10. Three previous family reports have been prepared, the most recent of which, it seems, is a report from Mr Y on 22 November 2008, and a number of earlier orders have been made by the court, most recently the order by Howard FM on 19 March 2009 to which I have just referred. 

11. The picture painted by Mr Y’s report is an unattractive one.  He points to what he calls “various configurations of arrangements” that have been afforded to the children.  He refers to:

    …a range of counselling for the Peirson Organisation, Lifeline, their school, and, in [B’s] case, through the […] Youth Mentoring Program SSS.  In addition the children have had sessions with psychologist [Ms N], and more recently have been taken to [I Organisation] at [V] where they have been seeing psychologist [Ms E].

12. Just that reference alone gives some indication of the troubled and troubling background that these children have had to experience in their short lives. 

13. Towards the end of his report Mr Y says:

    This is a troubled matter.  The parents have been separated for several years.  There have been two reports undertaken previously.  There have been several orders.  Yet in 2008 the arrangements for the children are still uncertain and surrounded in conflict.  Furthermore, the three children are at three different primary schools and the behaviour of [B], in particular, is of great concern.  To speak with the children in a vacuum is to believe that all is well, that they are relatively happy with the current arrangements as ordered by Howard FM on 4 August 2008:  yes, a bit of fine tuning could be undertaken, but overall they are happy to be living primarily with mum and seeing dad on a regular basis.  It is only when one witnesses change-over arrangements under supposedly controlled circumstances (of the writer being present) that one becomes aware of how drama packed the situation is. 

    33.   The father’s bombastic aggressive attitude towards the mother in the writer’s presence is suggestive of potential to be far more so at other times.  Clearly all potential for such drama at change-overs needs to be removed, with the [V] Contact Centre offering the most obvious solution.

14. Mr Y refers to a qualified recommendation by a previous report writer early in 2007, some two and a half years ago, in respect of a shared 50/50 arrangement. 

15. However, ultimately Mr Y concludes that:

    This is a situation where the old fashioned solution of alternative weekends and half school holidays is worthy of consideration, rather than the unworkable alternatives of supervised at the contact centre until the dust settles, or 50/50.

16. Mr Y also refers to a number of what might be described as psychological stressors or pressure on the children.  He refers to, for example:

    …[M’s] behaviour as being fearful of feeling under pressure in dad’s presence as part of the report writing process. 

17. That reference, which is also reflected in comments of a similar type by Mr Y about the other two children, is relevant because the father, in terms of attempting to “justify” his current stance, refers to the mother, as it were, psychologically brainwashing the children. 

18. Mr Y concludes in that report that the three children will benefit from the formerly conventional arrangement of alternate weekends and half school holidays with their father. 

19. It is that report which appears to have founded the orders made ultimately by Howard FM on 19 March 2009. 

20. It is, of course, always a matter of considerable concern when any party suggests that there is any physical or other abuse of a child.  The court at all times takes such matters very seriously. 

21. Equally, the court is constrained to act in accordance with the evidence before it based on earlier determinations made by this, or other courts and evidence from independent third parties, particularly independent third party experts who have provided reports. 

22. It is plain that, in this case, there is a long history of conflict.  That conflict is nothing but harmful for the children.  It appears the conflict is continuing. 

23. It is unsurprising that children would say things to each of their parents in the context of that conflict, particularly in the circumstances of what might broadly be described as psychological pressure as referred to by Mr Y. 

24. When proceeding on an interim basis, and, in this particular case, in respect of an urgent order sought in circumstances where the father admits holding a child over contrary to the order made by Howard FM, the court is forced to act upon such reliable information as it has before it. 

25. In the present case I am particularly persuaded by the evidence produced from the bar table, as yet untested and as yet unconfirmed by reference to any documents produced either by the police or the Department of Child Safety, by confirmed by the father, that they have investigated the father’s concerns and found them to be unsubstantiated.  It is for those reasons that I will order the father to immediately return the child so as to comply with the orders made by Howard FM in the manner that I have. 

26. I have noted that the matter is due to be heard by Green FM for a directions hearing ahead of the case’s entry into this court’s Child Responsive Program which, as part of it, will include a reference of the family to a family consultant for the purposes of a family and children’s issues assessment report which, in turn, will be available to the court on the first occasion it comes before a judge. 

27. That, together with the history of this matter serve to notify the mother that this court well has in mind the assertion made by the father and, in particular, specific assertions as to risk posed by the mother’s adult son from another relationship. 

28. The mother and the father should be under no illusions but that the eyes of the court are on them. 

29. Moreover, there is now a process in place whereby the court will be informed through expert evidence of any concerns that the children express, either about the sorts of psychological pressure to which Mr Y refers, or any concerns about their physical, emotional or psychological well being.

30. I will, in addition, give leave to the independent children’s lawyer to issue subpoenae to the Queensland Police Service and the Department of Child Safety in respect of all documents relating to the assertions made by the father in respect of this matter.

31. I give leave to the independent children’s lawyer to inspect and copy those documents, and leave to the parties to inspect only such documents are produced pursuant to those subpoenae. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  19 August 2009