Crouper & Mitchell (No 3)
[2024] FedCFamC2F 556
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Crouper & Mitchell (No 3) [2024] FedCFamC2F 556
File number(s): CSC 293 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – recovery order arising from after hours service – subsequent attempt to comply with order for return of child made before recovery order – subsequent order that recovery order “lie in the registry” – subsequent advise child returned – recovery order vacated Legislation: Family Law Act 1975 (Cth) Part VII Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 24 & 29 April 2024 Place: Melbourne Solicitor for the Applicant: Aboriginal & Torres Strait Islander Legal Service (QLD) Ltd The Respondent: In Person ORDERS
CSC 293 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CROUPER
ApplicantAND: MR MITCHELL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
[24 April 2024 Orders]
Recovery Order
1.Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born in 2008 and to deliver the child to the applicant Mother at such place as the Mother and the person effecting such recovery agree to be appropriate; and
(b)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.
2.The recovery order ordered by the court this day lie in the Registry until 10.00am Monday 29 April 2024.
Further Hearing
3.The matter be listed before Judge O’Shannessy for mention at 10.00am on Monday 29 April 2024
4.In the event the Mother, Ms Crouper advises her Solicitor that the child has returned to City B airport by or on Sunday 28 April 2024 and is then relayed to Chambers, the further hearing on Monday 29 April 2024 be and is vacated.
5.The matter is otherwise adjourned, subject to vacation, to Monday 27 May 2024 at 11.30am before a Judicial Registrar in the Town D Circuit. AND IT IS REQUESTED that the Respondent, Mr Mitchell, be given a Microsoft Teams link for the hearing as he currently resides in City E.
6.Until further order the parties be and are restrained from sending any further emails and/or correspondence to the Chambers of Judge O’Shannessy, and that documents are to be filed in the correct course.
7.Any further documents to be relied upon is to be filed on or before 4:00pm EST 20 May 2024.
Independent Childrens Lawyer
8.Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for:
(a)X born in 2008.
(the child.).
9.Queensland Legal Aid is requested to make arrangements as soon as possible for appropriate representation for the child. and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
10.The Court advise legalaid.qld.gov.au of this order forthwith.
11.Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children’s Lawyer copies of all relevant documents.
12.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by a party.
Transcript
13.The Transcript of the proceedings this day will be provided to parties and ICL via email.
14.Parties be at liberty to provide any copy of these orders and/or reasons for decisions and/or documents tendered in these proceedings to any Police Officer or member of any Child Protection Department.
AND THE COURT NOTES THAT:
A.An Independent Children’s Lawyer has been appointed for the following reasons:
(a)there has been allegations of physical, sexual or psychological abuse which apparently have been reported to the state welfare authorities and the police.
B.Queensland Legal Aid be given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
C.After issue of the recovery order, the Respondent has requested and seeks that he will return X to City B airport himself. This may assist police to execute that order. If X promptly returns to City B and Mr Mitchell contacts Ms Crouper and Chambers of the return of X, his Honour will consider that to be an application to revoke the Recovery Order pursuant to Order 1 herein.
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.
[FURTHER ORDER MADE ON 29 APRIL 2024 IN CHAMBERS]
THE COURT ORDERS THAT:
1.Order 1 (the Recovery Order made the morning of 24 April 2024) and Order 2 (that the Recovery Order lie in the Registry until 10.00 am Monday 29 April) be and are discharged.
2.The hearing listed for 10.00 am on Monday 29 April 2024 be and is vacated.
AND THE COURT NOTES THAT:
A.The solicitor for the applicant mother, Ms Crouper, advised that the child, X, was returned to her mother’s care by the respondent father, Mr Mitchell, on Sunday 28 April 2024.
B.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.
C.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.
D.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.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.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, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
These are the third settled reasons in the matter of Crouper & Mitchell. I first dealt with the matter after being contacted by the after-hours service on Saturday evening of 13 April 2024. I made Orders effectively, ex parte, on that evening and adjourned the matter to Tuesday morning at 10.00 am on 16 April 2024. On Tuesday morning at about 11:00 am, I made further Orders. Upon attempting to communicate those Orders to the respondent father, Mr Mitchell (‘the Father’), it was ascertained that, by an error or glitch, the wrong phone number had been recorded and used. It turned out that when the Father was telephoned on his correct phone number, he answered the phone immediately. In those circumstances, the Orders of Tuesday morning were vacated and the matter listed again on Tuesday afternoon at 2.15 pm.
Background
On Tuesday, at 2.15 pm, the Father appeared by video link and the applicant mother, Ms Crouper (‘the Mother’), appeared by telephone. The Father requested time to take legal advice. In those circumstances, I declined to make any further orders and adjourned the matter to Friday at 10.00 am – that is, Friday, 19 April. On Friday morning, the Father had in the meantime taken legal advice and I proceeded to hear the application.
On that Friday morning, the Mother did not press the recovery order but pressed for an order that the Father return the child, X, to her. I made that Order. I also made comments in delivering my reasons that it was hoped that the Father and the Mother would be able to be in touch about arrangements for X to be delivered to City B airport – that being cheaper and being roughly halfway between Town L and City E.
I otherwise adjourned the matter to this morning at 10.00 am to deal with the matter again in the event that X had not been returned. Effectively, I adjourned the application for a recovery order until this morning.
Father’s material
The Father had, in the intervening period, sent a number of emails to the Court and at least some of them to the Mother or her solicitor, that list of documents was tendered as exhibit F7 and placed on the court file (that included photographs of apparent bruising to X).
Mother’s reply
After the Mother had the opportunity to take legal advice from her solicitor, I had her give sworn evidence to me this day, and her explanation or side of the story. The Mother’s side of the story in regard to those images is that she believes the bruise on the leg occurred, as far as she can recall, some time prior to the police attending – that is, when the police had attended as a result of a complaint by the Father about the Mother’s treatment of X. The Mother told me that the bruise on the leg occurred months before the black eyes. She said she did not know anything about the bruise on the leg, but that an image of it was taken by someone in her family, it was circulated amongst her family, and she was questioned about it. She told those questioning her that they should talk to X.
The Mother has been told, she says, that X told those who inquired about the bruise that this had happened at school. In regard to the black eyes, the Mother told me they occurred at around Christmas time and that she recalls, on one of the occasions – because she believes this occurred on two different occasions – X came running to her crying and that X had accidentally flicked or poked herself in the eye when she was running. The Mother denies striking X.
Father’s concern
Another email that the Father has sent recites as follows:
I would like to give you an update "[X] found out today. The resident of [address where Father collected [X] from], [Ms C], was involved in a high-speed police chase and crashed with children in the vehicle in [City B] and was taken to the mental health section of the hospital."
The Mother has told me this day that that account, on her understanding, is broadly correct. That address is the address where the Mother wishes the police recovery order to deliver X to her. The other documents that the Father has sent me include, on email 6, the passage as follows:
Told [X] I have to leave on Saturday. [X] pleads for me to go with her, crying and sad. I agreed to take her because of the verbal and physical abuse and the abandonment and isolation issues ..... [X]'s ecstatic, happy, screaming with joy and hugging me.
This day, the Father has told me that X has told him that she is adamant that she wants to stay with him and, if she returns, she will be in harm's way. He also told me that he had removed X from her mother's care after pleas to rescue her from harm's way, and that X said, if she gets sent back, she will self-harm.
Issue of the return of the child to the mother
I had the Mother recite to me what arrangements had occurred in regard to a ticket for X (after my previous order). The Mother told me, when the matter was called over that she had paid for a ticket for X and sent it to the Father. With the consent of her solicitor, I asked the Mother for more details about that.
The Mother’s solicitor told me that the Mother had paid for a ticket for X and had sent the ticket electronically to the Father. To put this in context, I note that the Order made on Friday 19 April 2024 was that X was to be returned to the Mother at City B airport no later than Tuesday 23 April at 5.00 pm. I also note that it now appears to me by a glitch in my office that the Order of 19 April was not emailed to the parties, and I apologise for that and that has been rectified this day.
The Mother read to me text messages from her phone to the Father as follows:
April at 12.29 pm, (12.29 Queensland time):
Hey, [Mr Mitchell], have you managed to sort [X]'s flight. Let me know how you are going. [Ms Crouper].
The Mother read out the Father’s response:
No, I have no money. Handing myself into the Federal Police tomorrow.
The Mother told me that she responded:
I will try and get her a ticket tomorrow, […] (Being a credit service)
The Father, she says, responded with the text message of, "Okay". Then there was a second message from the Father after the "Okay" that said:
Save your money. Once the police arrest me I think they will escort [X] back federally.
The Mother responded to that message as follows:
I don't want our daughter traumatised like that. I will rake up her fare. I'm $200 short at the moment.
The Father responded to that message:
I don't get money until Wednesday and my deadline is tomorrow.
In April 2024 at 8.56 am, the Mother sent the Father another text message: "I'm booking her fare now." The Mother told me that she was able to obtain an early flight that cost $254, she says that she sent, by text message, the booking number to the Father.
She also says that she sent him the itinerary sent to her by the airline to the Father at 11.02 am Queensland time, which would be 10.32am Northern Territory time. The Father accepts the text message exchanges that I have read out so far as more or less correct, save that he says he did not receive the itinerary that had been said to be sent at about some time on Tuesday morning. However, it is not disputed that the Father knew that the Mother had booked an airfare for X.
The Mother told me that at some reasonable time before the flight - she says about four hours prior to the departure of the flight (and noting that it is ten minutes to travel by motor car from the Father’s home to City E Airport) she advised the Father that:
She needs to be at the airport by 1.30.
Mother drives 1450km to City B to collect X
The Mother says that the Father responded, "Okay". The Mother tells me, and I accept, that by Monday she was already in City B. She had left Town D and had driven to City B, it being, on her account, about a 24 hour drive.
I am satisfied it is approximately 1450km drive from Town D or Town L to City B[1]. The Mother tells me that as a result of driving to City B from Town L, she was at City B airport when the flight that she had booked.
[1] According to a Google Maps search
She tells me, and I accept that she was unable to see X disembark from the plane. The Mother tells me that she has sent X a copy of the airline’s flight details. X sent the Mother a message as follows:
Mum, mum, ring me, please.
Mother waiting in City B: X not on the plane
The Mother did not see that message at the time but saw it later. At about 6.48 pm, the Mother sent the Father a message:
Did you put [X] on the plane?
By this stage, the Mother was already at City B. The Mother sent X a message:
Did you get on the plane? I'm at the airport.
And then a further message:
Are you here or not?
The Mother did not receive any message from Ms C. The Mother tells me and for the purpose of this hearing I accept she was frantically searching City B Airport in case she missed X and that she sent a further message to X:
I don't know if you got on the plane. Let me know, please. Very unfair.
X’s last message
The Mother received a message that purported to come from X as follows:
I didn't get on the plane. I'm so sorry. I love you.
That was the last that the Mother has heard from X or the Father, save for what the Father has told me and the Mother this morning. The Mother remains at City B and presses that a recovery order be made for the purpose of delivering X to her at [the address], City B. That is the address where the relative, Ms C, was living and from where X was removed from her care, but before the high-speed chase that had resulted in apparent injury to Ms C. It is unclear to me whether children were injured or not.
Conclusion: Recovery Order to issue
Balancing all of those matters, it is my sad duty, and cognisant of the significant trouble and grief that this will cause for X, I am satisfied that it is necessary to issue a recovery order for X to be recovered.
I take into account that the Father has told me that, rather than X being on the aeroplane to City B on the ticket provided by the Mother, that he and X had attended a Legal Aid office and Child Protection office in City E instead.
I take into account all of the provisions of Part VII of the Family Law Act 1975 (Cth) as it is at this day. It is not appropriate, in the tumultuous circumstances, that the party who has removed X from where she had been living for some time should retain her pending the further court case and inquiry into X’s welfare.
I am satisfied that it is appropriate that any inquiry into X's welfare, and I am satisfied there will be one, should be at the place where X has been living and going to school for many years.
Balance of risk
There is, on what the Father tells me, a risk to the welfare of X if she returns to her mother's care at Town D via City B. I am satisfied that there is a risk to X's welfare if she remains with her father and I refer to and repeat my observations that I made last Friday, in particular as to the need for parental authority at such a time.
Where this case ultimately turns out, I cannot say. I am satisfied it is in X's best interest that I appoint an Independent Children's Lawyer. I have now been advised that this matter can be listed before a Senior Judicial Registrar at the Town D Circuit of the Court on 27 May 2024 at 11.45am. I will note in my orders that the Father will request to appear electronically and should be sent a Teams link to assist him appear on that day.
I will make an order, and this is an order until further order, that the parties be and are restrained from emailing the chambers or associates of Judge O'Shannessy any further emails or documents. My reasons for making that order are to ensure that the next judicial officer that deals with this matter is able to deal with the matter in a regular fashion where, most importantly, both parties have the relevant documents in the most solemn and serious form, with all the consequences of that, that is formal applications and affidavits.
Further events and Orders: X returned
After the reasons and orders (as set out above) were delivered and made, my Associate received an email from the Father whereby he claimed to have booked an airfare for X to City B on the following Sunday evening (28 April 2024).
Of my own motion, that afternoon, I ordered that the recovery order lie in the registry until the following Monday morning (29 April 2024) at 10.00am.
On Monday 29 April 2024, the Mother’s solicitor advised that X had been returned to City B. I made orders in chambers discharging the recovery order and vacated the further hearing before me.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 7 May 2024
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