Crouper & Mitchell

[2024] FedCFamC2F 496

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Crouper & Mitchell [2024] FedCFamC2F 496   

File number(s):	CSC 293 of 2024
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	16 April 2024
Catchwords:	FAMILY LAW – emergency hearing – return of matter following ex parte hearing on Saturday night, facilitated by afterhours service – competing allegations of 15 year old child at risk of harm – matter adjourned for 3 days for parties to get legal advice – balancing competing risk of harm to child.
Division:	Division 2 Family Law
Number of paragraphs:	13
Date of last submission/s:	16 April 2024
Date of hearing:	16 April 2024
Place:	Melbourne
The Applicant:	In Person
The Respondent:	In Person

ORDERS

CSC 293 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CROUPER

Applicant

AND:

MR MITCHELL

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	16 APRIL 2024

THE COURT ORDERS THAT:

1.The Orders made earlier this day in these proceedings be and are discharged.

2.The matter be and is adjourned to Friday 19 April 2024 at 10.00 am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.

3.Orders 1 and 9 of the Orders of 13 April 2024 be and are discharged.

4.On or before 4.00 pm on 17 April 2024, the Applicant, Ms Crouper, and the Respondent, Mr Mitchell, file and serve such affidavits, applications, and Notices of Risk they rely on.

5.The Respondent send a text message to the Applicant’s mobile telephone (ending …) to notify the Applicant whenever he sends any documentation to the Applicant’s solicitor, Mr Nielsen.

6.The Applicant and the Respondent do all acts and things necessary to ensure that the child, X, born in 2008, be and is available for a Child Impact Report as soon as advised.

AND THE COURT NOTES THAT:

A.This may be a matter to be dealt with by Child Protective Services.

B.The Applicant has advised that she has retained Mr Murray Nielsen of Aboriginal and Torres Strait Islander Legal Service (ATSIL), Town D.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

E.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR EX TEMPORE JUDGMENT

1. These are the settled reasons of a judgment delivered ex tempore.  These reasons were delivered orally.  These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read.  The substance is unchanged.  The parents of the child appeared by telephone this afternoon.

   BACKGROUND

2. In the matter of Crouper & Mitchell, the matter comes before me for the third time.  The background – based upon what the applicant mother, Ms Crouper (‘the Mother’), has told me – is that her daughter, X, has lived all her life with her, save for six months when she was five years old, when she lived with the respondent father, Mr Mitchell (‘the Father’).  X was born in 2008 and is 15 years.  In 2015 or thereabouts, the Mother obtained a court order that X would live with her, and she has lived with her since.  The existing orders do not make any provision for the Father to spend time with X other than what is agreed.  The Mother and the Father have agreed from time to time that X would spend some time with her father over the years.

3. Over Easter, the Mother and X travelled to City B to spend time with family.  From there, the Mother needed to travel to Brisbane for personal reasons, being a funeral.  Whilst the Mother was in Brisbane, without notice to the Mother, the Father attended the home of Ms C, who was caring for X in the absence of the Mother and removed her from the care of Ms C.  After she had been removed, Ms C received a message from X, or at least X’s mobile phone number.  The Mother believes that the text message was sent from the Father’s phone but purporting to come from X.  The message was as follows:

   [Ms C], this is [X].  I am going to [City E] with dad.  I need to be with dad and my [Mitchell] family.  I did not tell you because I want to tell mum myself.  I never get to be with dad.  Mum can get angry at me, not you.  Sorry if she gives you a hard time.  I will be in touch.  Love you.  I also need a break from her and she needs a break from me. 

4. That is the only communication that the Mother has received from X or the Father.  By making other inquiries, the Mother believes and has told me and given sworn evidence today that she is concerned that X is in fact in City E with her father but is not being cared for appropriately. The Mother also says she has been told that X has an “online boyfriend” and that this “boyfriend” is a person living and working with the Father, and the Mother fears but does not know that the boyfriend is 17 or 18 years old.  The Mother fears that X will be exposed to underage sex and alcohol in the environment that she is in, and the Mother fears that X be introduced to alcohol and sex for the first time in her life in inappropriate circumstances.

5. On Saturday evening after taking evidence from the Mother, I made the following orders:

   1. The Respondent [MR MITCHELL] born [in] 1966 be and is restrained from removing [X] born [in] 2008 within 50km [City B] Central Business District.

   2. Until further order each party, [MR MITCHELL] born [in] 1966 their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated as Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child [X] born [in] 2008 from the Commonwealth of Australia for a period of (7) days.

   3. It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child name on the Watchlist for the said period or until the Court orders its removal.

   4. The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

   5. The Applicant is to immediately provide a 24 hour contact number to the Australian Federal Police.

   6. This order is not intended for any already departed aircraft or vessel.

   7. The Applicant is to file a Notice of Address for Service by no later than 4:00pm on 15 April 2024.

   8. In the event that the Notice of Address for Service is not filed at the Cairns Registry of the Federal Circuit and Family Court of Australia within 5 working days of this order, the said child will be removed from the Family Law Watchlist.

   9. The Applicant is to arrange service of a sealed copy of these orders as soon as practicable. The Applicant is permitted to post a copy of this Order on any social media necessary to bring this to his attention.

   10. This matter is to be listed before a Judge of the Federal Circuit and Family Court of Australia in the Melbourne Registry or otherwise at 10:00am on 16 April 2024.

   11. The costs of both parties are reserved, including any loss sustained as a result of the making of these orders.

6. At 8.15 pm immediately after the hearing on Saturday night, The Mother sent the following message to The Father:

   “There is now a federal order in place.  You are not allowed to remove [X] from [City B] or the country.  She must be returned home to me immediately.”

7. There has been no response to that message sent to the number believed to be the Father’s number, ending in “…”, since Saturday night.  In the meantime, the Mother has, as requested by me, attended upon a lawyer to commence to prepare documents, including what she describes to me as a Child at Risk Form.  In the circumstances of the Mother having further information about X’s whereabouts, her concerns are greater for X’s welfare than they were on Saturday evening. 

8. On Saturday evening, the Mother told me, and I accept her concern is genuine, that there was a small but not nil risk that the Father would remove X from the Commonwealth of Australia.  The Mother believes him to be fluent in a number of languages and to have spent considerable time overseas.  Notwithstanding that there was only a small risk of removal overseas but balancing that with the consequence if she was removed, I made an order restraining X from being removed from the Commonwealth of Australia and the usual watch list order. 

9. In addition, as recited above, I made an order that X not be removed from the vicinity of City B.  The Mother believes that notwithstanding her advice to the Father of the existence of an order, the Father proceeded to fly from City B to City E in the morning of early 2024.

10. I am told by the Mother that she has sought legal advice, and although there is no Notice of Address for service filed, I will endeavour to email to the Mother’s solicitor the orders I will make this day and the orders that were made on Saturday night.  I am satisfied on the evidence that I have that it is appropriate and in X’s best interests that she be returned immediately to the care of her mother. 

    Conclusion

11. I am going to revoke the order that X is to be delivered forthwith to the Mother.  My reasons are that on this emergency hearing, I cannot get to the bottom of what has happened.  In all these circumstances, I am adjourning the further hearing of the matter to Friday morning (19 April 2024).  Whether or not I will order that X be returned to the Mother is going to be a live issue on Friday morning when I hope that the parties have been able to obtain legal advice. 

12. The reasons that I am prepared to leave X where she is for the balance of this week are that:

    ·At the moment, X is not enrolled in a school to attend in any event, though the Mother may fix that very shortly;

    ·The Mother’s position is that in the recent past, last year, X had an extended holiday with her father of a number of weeks, though the period of time and the circumstances of the end of that times are in dispute; and

    ·After that holiday, I am not aware of allegations of X coming to harm during the holiday. 

13. So, with the assistance of the Father’s promises or undertakings to the court, I am not satisfied that it is necessary to immediately change arrangements so that X is immediately transported to Town D.  Whether or not I order that, I will determine on Friday morning when the parties have had the benefit of legal advice. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       23 April 2024