Crouper & Mitchell (No 2)
[2024] FedCFamC2F 523
•19 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Crouper & Mitchell (No 2) [2024] FedCFamC2F 523
File number(s): CSC 293 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 19 April 2024 Catchwords: FAMILY LAW – PARENTING – 15-year-old child removed from care of residential parent – Allegations of past serious violence – Allegations of past serious alcohol abuse – Recovery order not pressed – Parents to use parental authority to ensure child returned to custodial parent – Rice & Asplund raised but not dealt with – Order for child to return to usual residential parent – Application for recovery order adjourned pending return of child. Legislation: Family Law Act 1975 (Cth) ss 66CC(2A) Cases cited: Rice & Asplund [1978] FamCA 84 Division: Division 2 Family Law Number of paragraphs: 51 Date of last submission/s: 19 April 2024 Date of hearing: 19 April 2024 Place: Melbourne Solicitor for the Applicant: Aboriginal & Torres Strait Islander Legal Services Solicitor for 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:
19 APRIL 2024
THE COURT ORDERS THAT:
1.The child, X born in 2008, live with the applicant, her mother, Ms Crouper (‘the Mother’).
2.The respondent, the father of X, Mr Mitchell (‘the Father’), do all acts and things necessary and practicable to fly the child from City E to City B Airport for the purpose of returning to the care of the Mother as soon as possible, and:
(a)at his own expense; and
(b)by no later than 5.00 pm on Tuesday 23 April 2024.
3.The Father do all acts and things to cause and ensure that the Mother is kept aware of the up-to-the-minute arrangements for the return of X and the Father update the Mother via text message as to when X is due to arrive at City B Airport.
4.The Mother and Father communicate about arrangements for changeover for the child at City B Airport, and otherwise in regard to the child’s welfare, via text message and in respectful terms.
5.The Father be and is prohibited from removing X from the care of the Mother and/or taking possession of X.
6.The matter be and is adjourned to Wednesday 24 April 2024 at 10.00 am for Interim Hearing at the Federal Circuit and Family Court of Australia at Melbourne, for the purpose of ascertaining whether X has been returned to the care of the Mother and whether any further order or recovery order is required.
7.The parties be at liberty to request the hearing listed for Wednesday 24 April 2024 be vacated.
8.Save as provided at Order 6 herein, pursuant to Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the proceedings and all extant applications, including the Mother’s application pursuant to the rule known as the rule in Rice v Asplund, are transferred to the Brisbane registry of the Federal Circuit and Family Court of Australia, Division 2, and it is requested that, subject to any application or direction of the Court, the matter be included in the list of cases to be dealt with at the Town D circuit of the Court, and adjourned to a date to be fixed by that registry.
9.Pursuant to section 69ZW of the Family Law Act 1975 is it requested the child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland provide to the Court the following documents and information:
(a)any notifications to any child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland of suspected abuse of X to whom the proceedings relate or of suspected family violence affecting the child including but not limited to any intake reports;
(b)any assessments of any child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;
(c)any reports commissioned by any child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and
(d)in the event that any child protection and/or child welfare authority and police force in the Northern Territory of the Commonwealth of Australia and the State of Queensland have an ongoing investigation in relation to the child to whom the proceedings relate, any recommendations for the future arrangements of the child taking into account the orders sought by the parties in these proceedings.
10.The Mother’s solicitor is requested to send the full names and dates of birth, as known to the Mother, of all of X’s siblings and half-siblings, maternal and paternal as soon as practical by email to the Associate to Judge O’Shannessy and to the Father.
AND THE COURT NOTES THAT:
A.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.
B.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.
C.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.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
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 evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The matter of Crouper & Mitchell comes before me for the third time in the last week. The matter came before me as a matter of emergency on the after hours service on Saturday evening 13 April 2024. At that time the applicant, Ms Crouper, appeared by telephone as a litigant in person and sought orders that I prevent the child, X born in 2008, from leaving the Commonwealth of Australia, a watch list order, and an order that X be forthwith returned to her. Efforts to contact the respondent, Mr Mitchell, were unsuccessful.
Background of the parties
The uncontroversial aspects of X’s life is that her father, Mr Mitchell is 57 years (‘the Father’), and her mother, Ms Crouper, is 53 years (‘the Mother’). The parents met in 2007, and I understand it is not disputed, when the Mother was a student studying in City E.
In 2008, the Mother moved to City E and X was born in 2008 in City E. The relationship between her parents ended in 2009, as alleged by the Mother, and it may be that the parties had a relationship of some form for some time after that. It is not disputed that in 2015 there were Final Parenting Orders made which provided for the child to live with the Mother. The Father’s case before me last Tuesday was that those Final Orders were made without notice to him and he did not have the opportunity to participate in the hearing. Nonetheless, there was no dispute that final orders were made and that the Father knew of them.
The Mother alleges – and it does not appear disputed – that a protection order was made against the Father for the benefit of the Mother in 2018, and that was on the application of the police. It is important to note at this point that, from when the relationship ended in 2009, X, now 15, has lived almost continuously with her mother.
In the first term of 2024, it appears that X’s enrolment at a local private school had ended or been terminated. X had a scholarship of some degree and the Mother alleges that X had, at least at times, lost interest in her particular education. On the Mother’s account, it would appear that X has considerable talent in the arts and has been recognised for doing so. The situation continued with X living with her mother and also the Mother’s father as she had done for many years until Saturday 13 April.
By agreement between her parents, in the past X had travelled to City E and spent some time (the amount of time appears to be in dispute and the Mother alleges it was over several weeks) to spend time with the Father’s mother, who was in palliative care. X left City E in the Mother’s care and, from the Father’s perspective, was removed without notice to him. The Mother’s position is that X had been with the Father for some weeks and that she had not prevented a relationship between the Father and X or between X and the Father’s mother.
The Father was concerned about the welfare of X and contacted police and/or welfare authorities several times over the years 2022 and 2023. No action was taken, but it is common ground that the police spoke to the Mother and X on at least one occasion. The Mother asserts that the police regarded the Father’s complaint as vexatious and the Father denies that.
The Father’s asserted understanding of those complaints is that, because of X’s refusal to cooperate or verify matters that he feared had happened and he alleges he had been told of, the police were unable to take any action.
Implicit in the Mother’s case – or at least not denied – is the importance to X of maintaining connections to her Father’s considerable connections to country in the areas recited previously.
The Mother asserts and I accept that it is important for X to maintain connection to her cultural and spiritual heritage from her Mother’s tradition and culture. It may be that, if a court is satisfied that it is safe to do so in a practical day-to-day sense and if the parents had a different and even slightly cooperative parental relationship, that X would be able to benefit from not only the connections to country in and around Queensland but also in and around the Northern Territory. At the moment, it does not appear possible for X to participate in both the culture of her mother and the culture of her father. Unfortunately for X, the state of the relationship between her parents is such that it appears to be an all or nothing situation. That is a tragedy, but there is nothing I can do about that on this interim hearing.
These proceedings
The emergency or urgent orders sought by the Mother (at that time on Saturday evening), were not expressed in the form referred to, but that was the substance of what she sought. Attempts were made to contact the Father, but by inadvertence it appears that an incorrect phone number was used, hence, those orders were made “ex parte” which is hearing the evidence without the other party having their side of the story heard.
Those Orders of Saturday evening on 13 April 2024 adjourned the further hearing of the matter to 16 April 2024. On the morning of 16 April 2024, the Mother again appeared as a litigant in person. Attempts were again made to contact the Father, however, it appears by error or slip that an incorrect phone number was again used. That hearing on the morning of 16 April 2024 proceeded “ex parte” once again.
I made orders that morning having only heard the Mother’s side of the story that the matter be adjourned to Friday (today) at 10.00 am and that the Father do all acts and things to immediately cause and return X to her mother’s care. In the course of those Orders being attempted to be communicated to the Father, the error or glitch in the system was discovered by my associate whereby it transpired that the Father had been attempted to be contacted but on the wrong mobile phone number.
When my associate called the correct mobile phone number while in chambers after the morning’s proceedings, being the number ending in …, the Father answered the phone immediately. In those circumstances I determined, by my own motion, to vacate the orders made that morning and to relist the matter for hearing that afternoon.
On the afternoon of Tuesday, 16 April 2024, the Father appeared by telephone and the Mother again appeared. The Father sought an adjournment to take legal advice. After hearing the parties, I determined that I would not make further orders, but adjourned until this morning, that is, the following Friday. In the meantime, the Mother has consulted her solicitor, Mr Nielsen, at the Aboriginal and Torres Strait Islander Legal Service at Town D.
Issue of Rice & Asplund
On this Friday morning, Mr Nielsen filed on the Mother’s behalf a detailed affidavit and an outline of case document. The outline of case document set out with precision the orders that the Mother sought. The primary application articulated in the outline of case was that the Father had not satisfied the rule in the authority or precedent under the principal of Rice & Asplund [1978] FamCA 84 (Rice & Asplund). That is not a Danish dessert but, in fact, a precedent case stating a legal principal.
The principle of that authority is that once final orders have been made neither party to those final orders can bring another court case concerning the child or children unless there is a substantial or significant change of circumstances such that the change of circumstances justifies the further trouble, grief, and trauma to all involved of another court case about the child or children.
The outline of case and affidavit had been sent by email to the Father only this (Friday) morning. I adjourned the matter after explaining procedures to the Father (who appeared by telephone) for an hour or so to give him the opportunity to read the material that had been served and I am satisfied that he did so. I also read out to him the minute of orders sought by the applicant Mother at the last page of her outline of case.
Before this hearing commenced, I indicated to the parties that I did not propose to deal with the Rice & Asplund matter today in the circumstances where the Father had had very short notice of that application. I will seek and direct that the Rice & Asplund application be dealt with as soon as is convenient to the Court.
Transfer of the matter
I also indicated to the parties that I would transfer the matter to a registry more able to deal with the matter in the sense of being closer to where, at least, one of the parties lives. The Mother lives at Town D some five or so hours from Brisbane and the Father lives in City E. X had been temporarily staying at City B when, it is common ground, the Father attended there and removed X from the care of the person that her mother had left her with. City B is roughly, and very roughly, in the middle of City E and Town D.
I propose to transfer the proceedings to the registry of the Court that will be closest to where the child will be living.
Material filed and orders sought
After further discussion, the Mother’s solicitor acknowledged that, in the circumstances of this emergency hearing, the orders that she sought should be regarded as being sought until further order of the court, that is, interim or temporary orders.
Before the Mother had filed her documents, the Father had assisted me by emailing further documents to be used in the proceedings. Those documents were tendered in the proceedings and are exhibit F2, 16 April 2024, exhibit F3, 16 April 2024 and exhibit F4, 19 April 2024. The long and the short of it is that the Father provided to the Court and to the Mother’s solicitors a Notice of Child Abuse, Family Violence or Risk document and that was Exhibited as F4, 19 April 2024.
It is common ground that over 2022 and 2023 The Father had contacted police and/or Child Protection Services in Town D requesting welfare checks.
Father seeking orders
Before I go to further detail in those documents, the hearing proceeded on the basis that the Father had emailed the court on Thursday 18 April at 3.06 pm requesting “respectfully request to be recognised as primary custodial parent of [X]” which I find, in substance, to be an application for interim and permanent orders that X lives with him.
Substance of the matters in dispute
In this matter I have attempted to deal with the substance of the competing applications rather than the technical aspects of the matters before me. I am grateful to the Mother’s solicitor, Mr Nielsen, who has not taken any technical points as to the form of the Father’s application and who has treated the Father’s response to the Mother’s application (seeking X to return to her care) as an application for an interim and final order that X live with him. I also acknowledge the concise, efficient, and articulate submissions of the Father that went to the heart of what he wanted the Court to do and why.
In this case, I am not satisfied that the Father has been disadvantaged by representing himself. Rather, his representation of himself enabled me to have a crisp understanding of aspects of his case, including the significance of X’s connections to country and connections to country over the Northern Territory.
Mother’s material
The Mother’s material annexes an affidavit that she made in 2014, and for convenience I will recite the relevant paragraphs by way of background and history.
5.… I met the Father on or about [mid]-2007, after [my son’s] birthday. At this time I was still living in [Town D], however moved to [City E] to live with the Father on or about [early] 2008 ..
…
b. Because of my studies, I was traveling to and from [Town D].
c.I met the Father whilst in [City E], and found him charming. We struck up a close friendship and our relationship escalated.
…
f.I transferred my scholarship and moved in with the Father
…
h.I fell pregnant with [X] and was due in 2009, but she would be born premature. ... It was a very difficult pregnancy. Despite this, towards the end of my pregnancy, I recall the father leaving me at [Town F] which is very far from where I lived . I had to start to walk home, and then managed to get a lift with someone who was kind enough to pick me up.
…
…
7.… [Ms H] primarily lived with the Father up until [mid]-2013 .
…
b. [Ms H] is the mother of the 4 children living with the Father.
c.I recall in late 2012/early 2013 the Father told [Ms H] she had to move out, and as a consequence she [harmed] herself in front of the children.
…
iv.I visited [Ms H] upon release when [Ms H] then went to stay at [Ms G]’s home (being one of the Fathers sisters). When I visited, I took the children so they could see her, and I saw the 2 puncture marks ..
…
g.In 2008, whilst pregnant, of high concern, when I left my children with the father when I had to go to [City J] for my studies, the father without informing me kicked [my 8-year-old son] out. The police found him, and took him home. The father said he didn't want [my son]. [My son] was placed into care whilst I was in hospital at [City J]. When I got back to [City E], the department had [my son] at the airport
…
8. From the time I fell pregnant the relationship just fell apart.
a.Whilst pregnant I was assaulted by the Father for the first time and I tried to leave him. Initially I tried to go to the women's refuge but [my son] was too old for them to take me by this time; though they did let me in on one occasion. Each time I left the Father, I had no-where to go so I had to go back to the Father as he would tell me he was sorry and things would change.
b. The Father drinks heavily.
i.When he is drinking he is very controlling - if he wanted sex, I had to give it to him.
ii.When he was hung over, he very easily got violent if disturbed.
iii.Initially the violence was simply pushing, shoving, and slapping, but this developed into punching and kicking.
iv.This however quickly escalated over the 6 years we were together and I recall on one occasion he literally forced me to have sex with him, and by the time the police turned up after the neighbours had called them, the Father told them we had just finished "making love" . I was repulsed by his statement and utterly ashamed.
…
c.Police were called on many occasions, predominantly by the neighbours. I recall on 2 or 3 occasions he was actually removed and placed in lockup to cool off, or taken to his relative's house to cool off there.
d.There were multiple domestic violence orders made by the police against the Father with myself as the aggrieved. I recall in at least one of them, the Father was not to be drinking around me, but he would anyway. The Father also took out applications against me, but I simply did not turn up to court and let him have his orders.
…
h.I am extremely scared to go back to [City E] where the Father lives, or anywhere near that area.
…
…
10. …
h.On another occasion in 2009, I was at the Fathers home with [X], … the Father asked me to pick up [his children] from school, but the Father did not return home.
i.He did this on occasion and I had no idea where he was as his phone was switched off.
ii. After a couple of days I went looking for him.
iii.I went to … home … and that is where I finally found him - there was a large group of people drinking including both the Father and …. I dropped off his children, and told the Father off for his behaviour.
iv.The Father told me to leave. As I was getting into the car, [Ms H] came out and hit out at my car with a metal bar, [causing damage] just missing [X], but striking her safety seat.
v.I got out of car to and grabbed the [object] flinging it up the road. I was in a frenzy at her almost hitting [X]and I could not believe what she had just done.
vi.The Father grabbed me, [assaulted me] and told me to "fuck off', saying I had wreaked the party. He is very large, and easily picked me up tossing me into the car.
…
11. …
b.There were only 5 occasions in the last 12 months since [X] had stopped breast feedings that [X] was with the Father alone at his home, ...
…
iv.On the forth occasion, [X] was again kept from me which ultimately lead me to going to the Fathers home to try to get her back, and finally fleeing [City E] for fear of the Fathers on-going abuse .
1.In [early] 2014, I recall taking [X] to see the Father after he had requested me to come over with her. I suspected it was more about the Father wanting sex than anything else but agreed.
…
4.When I came back a few hours later, it was already dark. I had to enter the Fathers property and made my way to the back room where l found [X] asleep with [Ms H] on the same bed. [Ms H] smelt heavily of alcohol and there were wine bottles throughout the house .
5.I tried to pick up [X] to head out of the house but was confronted by … who tried to stop me.
…
8.I got about [5]kms before running out of petrol. I realised at this point I had lost my phone, so I headed to the Fathers nieces home for help as she lived nearby.
…
c.I recall her then coming over and [assaulting] me for no reason, causing me to fall backwards from where I was sitting.
d.[X] came out whilst I was being [assaulted]. A cousin of the Fathers came over and pulled the niece off of me.
e.Shocked, I fled back to the car with [X] and we went to sleep in the car. The next thing I recall the police woke me up whilst I was in the car and the Fathers family were with them (though the Father was not there). The Police arrested me, and took me to the watch house and [X] went with the family to be taken back to the Fathers home.
9.Police let me out after I was finally allowed to contact a solicitor at legal aid. I initially tried Aboriginal services but they told me there was a conflict of interest as they had previously acted for the Father. I was released within the hour of contacting legal aid. … I was bleeding at the time being covered in bruises and scrapes . …
10.I tried to recover [X] for about 10 days before I finally found she had been enrolled at [K School]. At no time did the Father try to contact me or let me know where she was. I was not allowed to the Fathers home as I had been told there was an order in place preventing me to going there . It was a terrible experience, and I was in shock at the beating I had taken. It was at this time I knew I simply had to get [X] and flee [City E].
11.I picked [X] up from the school on a Friday afternoon, hiding at a [friend’s] home and I was on a flight back to [Town D] by Saturday. I had to leave everything behind. I was very scared, and had to swap cars throughout the process thinking this would help not being found by the Father. I say I was petrified for my life, and terrified the Father would take [X] from me and subjecting her to a life of neglect, drugs, alcohol, and abuse. I am very scared that if I go back to [City E], I will be killed.
…
24.I am in fear of my life if I return to [City E]. The Father has in no uncertain terms told me, that if I ever left him he will kill me, and that he would get away with it because he [has a mental illness], adding "he would get 3 years at the most and it would be worth it".
…
43.[X] has taken up with the cultural heritage of our land, and has begun participating in …
Within the affidavit filed today, the Mother stated the orders that she seeks:
49. All previous orders be dismissed
50. The [X] (child) live with the Mother.
51. The mother have sole parentally responsibility over the Child
52. The Father have contact with the child as agreed between the parents.
53.The Father be allowed telephone contact with the child twice per week, to be initiated by the Father between 5:30pm and 6:00pm on a Wednesday and a Friday, Queensland time .
54. The Father is not to make any enquires or attempt to find the mothers address
55.That within 5 years of these orders, the parents enter-into mediation in an attempt to increase contact between the child has with the Father.
56.I would also request each party do a Disialo Carbohydrate-Deficient Transferrin test (dCDT) to test for alcohol abuse , and for that test to be done with 48 hours of any orders being made.
57.I would further seek an order that either parent may request from the other parent with 48 hour notice a drug screening test. Where that test is negative, the parent requesting the test will be responsible for the cost of the test . Neither parent shall request more than 2 tests per month.
58.Finally, I would also seek the matter be transferred to the Queensland registry for the [Town D] circuit with an independent children' s lawyer being appointed.
59.All the facts and circumstances deposed to in this Affidavit are from my own knowledge save as are deposed to from information only and my means of knowledge and sources of information are referred to in my affidavit.
The Mother’s submissions to me this day were as contained in a helpful and concise outline of case document, and relevant paragraphs are recited as follows:
1.In brief, it is submitted that the court ought to issue a recovery order for the return of the child to the Mother.
2. It is submitted that the Father has not satisfied the " rule" in Rice & Asplund.
3.It is conceded by all parties that final orders were in place - likely made around 9 July 2015. Copies of those orders are not to hand, but the Father conceded the existence of the orders and the parenting arrangements that have been in place since at least 2015 - which has been that the child has been in the primary care of the mother and lived in [Town D].
…
5.On 16 April 2024 the father admitted to the Court to carrying out the plan and removing the child without notice to the Mother and relocating the child to [City E].
6.It is submitted that there is no lawful or reasonable basis for the father to take such action.
7.It is submitted that there is no evidence before the court that would satisfy the court that the steps taken by the father were in any way appropriate or in the best interests of the child.
…
9.At items 11 to 16 of the father's notice, the father states that he has made at least 3 to 4 police welfare checks.
10.It is submitted that these allegations should not persuade the court that the father's actions are appropriate. Rather, it is submitted that no further action was at any time taken by police or any other authority. Indeed, the mother deposes that after the last report in around mid 2023, police told the mother that they considered the father to be a vexatious complainant.
…
20.Further, it is submitted that there is no probative evidence before the Court that would support an order that the child remain in the father's care.
21.It is submitted that the father's conduct has significantly destabilised the matter and it is submitted that it is open to the court to find that the father actively sought to destabilise the child's living environment insofar as rather than take a proactive and supportive approach to the child's wellbeing, he has done very little to assist and or support the mother or the child.
…
25. In summary, the Mother's position is that:
a. the child should be returned to the mother forthwith;
b. that father has failed to particularise any risk;
c. that the father has failed to satisfy the rule in Rice & Asplund;
d.that the father presents an unacceptable risk of harm to the child - not only with the allegations of domestic violence and concerns regarding his parenting style generally, but also in relation to actual or potential emotional and psychological harm - particularly with respect to the child/parent relationship/dynamic between the child and the mother.
Hearing this day
This being an emergency and interim hearing, I am not in a position to make findings as to the factual disputes between the parties. I raised with the Father the allegations of violence against the Mother and other women. I gave him the opportunity to tell me whether those allegations were partly true, entirely true or not true at all. The Father advised me that those allegations were not true at all. I proceed on the basis that those allegations are denied.
The circumstance where, upon the reading of the Mother’s material, her allegations have an apparent verisimilitude or believability about them does not, on this interim hearing, mean that I can find they are matters of fact.
Recovery order not pressed
The Father also told me that, if I was persuaded that [X] should live with her mother at [Town D], that he would, with financial difficulty, be able to essentially borrow funds to ensure that [X] flew to [City B] Airport where her mother could fly up to and pick her up. Upon my pressing, it was conceded by Mr Nielsen that the recovery order was a last resort order.
The practical effect of a recovery order is that the child may well feel that she has been arrested by the police to be removed from her father’s care. A recovery order is a very blunt instrument, and I am satisfied should only be used as a last resort. However, sadly, it is appropriate from time to time that I make such orders and, unfortunately, such orders are made not infrequently in this court.
In all of those circumstances, the Mother did not press her recovery order on the basis that she preferred the opportunity for her and the Father to cooperate. In this matter, I expect both parents to exercise their parental authority over X to ensure that she complies with my orders.
I take into account the whole of Part VII of the Family Law Act 1975 (Cth), including the objects and principles underlying those objects of section 60B:
Section 60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
The orders I will make require a degree of practical communication between the parents that has only rarely occurred in the past.
In terms of section 60CC factors, I am satisfied that there is a risk of physical and psychological harm to [X] if she is not returned: that is a risk, not a certainty.
It appears to me it is not a large risk at this point in time – or at least I am not satisfied it is a large risk. But, the consequences for [X] if the circumstances the Mother fears happened, would be so catastrophic. That is, exposure to alcohol, exposure to inappropriate sexual relationships, exposure to denigration of her mother, exposure to the destruction of her relationship with her mother and her mother’s family, would be catastrophic. I am concerned about those matters, and I take into account section 60CC(2A).
Section 60CC How a court determines what is in a child’s best interests
…
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I take into account that X may well have expressed to her father, or at least agreed or acquiesced in her father’s proposal, that he attend in City B and take her to City E. The prospect of X spending time and mixing with her siblings and extended family in City E would be not only agreeable to her but likely intoxicating and exciting.
It is not disputed that X was removed from the care of a relative of the Mother’s when the Mother had left X in City B while she attended Brisbane for personal business. It is not disputed that X was removed from her mother’s care without notice to her mother and without any inclination as to when she should return.
Balancing risk
On the Father’s case, he feels that he has good reason to act as he did. However, I am satisfied that part of the reason that the Father acted as he did was related to his own grief and sadness at not being able to participate more regularly and more significantly in X’s care.
I am not satisfied that there is such a real and significant risk to X’s care when she was living with her mother that I should leave her with her father. I take into account and place great weight on the fact that, for almost all of X’s life, she has lived with her mother.
I am troubled at the lack of regular connection between the Father and X, whether that be for holiday time or telephone time or any other time. However, at this stage, I am not satisfied, nor is there any proposal as to how that could occur, for X to spend time with her father.
On the Mother’s case, there is a real risk to the undermining of her parental authority and relationship with X if X remains in City E. The importance for a teenager to be subject to parental authority, parental guidance and parental care when on the cusp of adulthood and contemplating sexuality does not have to be stated, and I place great weight on the need for X to have parental care and guidance at this time of her life.
I am satisfied that, for the time being, that parental care and guidance should come from her mother, as it has for the last previous years. I take into account that, at this time, I have no evidence of any ill care or circumstances that would be contrary to X’s interests. However, I do not dismiss entirely or dismiss at all the Father’s allegations.
I had contemplated ordering a child impact report. Now that there is an application pursuant to the rule in Rice & Asplund, I am not satisfied that there should be a child impact report. At this point, I am not satisfied that X should be further involved in these proceedings (and her being interviewed) until the Rice & Asplund has been dealt with.
I will adjourn the further hearing of these proceedings with liberty for the parties to request that the hearing be vacated to next Wednesday, 24 April 2024, at 10.00 am before me. The order will provide that X is to be delivered to City B Airport on or before 5.00 pm next Tuesday, 23 April 2023. That gives the Father a very short period of time to organise the funds and airfares to get X to City B Airport.
I adjourn it to myself on the Wednesday to deal with the matter further in the event that X has not been returned, and I note that I am not dismissing the application for a recovery order, rather, adjourning that to 10.00 am on Wednesday, 24 April 2024.
What that means is the parents are permitted, regardless of whatever family violence orders may exist as a matter of state law, to communicate with each other regarding and X by text message in courteous terms. I am not yet in a position, nor is the court in a position, to determine whether the advantage to X of having a relationship and a knowledge of and participation in both her father’s and her mother’s culture outweighs the disadvantages and any risk of being exposed to harm, either psychological or physical. But I make no findings about that on this hearing.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 6 May 2024
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