DAMGARD & ABROLA

[2020] FCCA 2194

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMGARD & ABROLA [2020] FCCA 2194

Catchwords:
FAMILY LAW – Parenting – application for recovery order – where the child has been primarily in the care of his mother – where the father removed the child from the mother’s home because he is concerned about the child’s welfare – where not satisfied there is a proper basis for the conduct of the father – where nothing to suggest the child has been subjected to deliberate harm – the child ought to be returned to the mother’s care.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS DAMGARD

Respondent: MR ABROLA

File Number: DNC 370 of 2020

Judgment of: Judge Young

Hearing date: 21 July 2020

Date of Last Submission: 21 July 2020

Delivered at: Darwin

Delivered on: 21 July 2020

REPRESENTATION

Counsel for the Applicant: Ms Conquest

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the Respondent: In Person

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child X born in 2017 live with mother.

2. That the father return the child to the mother at City B Police Station at 12 noon today failing which a recovery order will issue.

3. That the father file and serve a Response, affidavit in support and notice of risk within 28 days.

4. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child X born in 2017 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

5. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

6. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

7. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

8. That the matter be adjourned to 31 August 2020 at 2:15pm for further directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 370 of 2020

MS DAMGARD

Applicant

And

MR ABROLA

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for recovery of the child, X, who is about two-and-a-half years old.  The matter has been listed urgently and the father was served only on Saturday, so he has had insufficient time to properly prepare his response. 

3. In summary terms the background is this.  The parties separated, it seems, soon after the child’s birth or perhaps even before his birth, in 2017.  The child was actually born in 2017, so it appears that the parties have not actually lived together with the child. 

4. The mother says that the parties separated in 2017; that is, before the child’s birth.  Mr Abrola has told me that is not entirely accurate, that there have been periods when he and the mother lived together since then. 

5. Be that as it may, it does not appear to be really in dispute that since the child’s birth, he has been primarily in the care of his mother.  He has spent, it would appear, significant time with his father and the mother deposes that at various times when she has left Darwin to seek employment, that she has placed the child with the father for at times reasonably lengthy periods, up to a week or perhaps more.  Most recently between 16 June and 23 June 2020, when the child lived with the father and, it would appear, the father’s mother.

6. On 30 June, the father went unannounced to the mother’s home and while the child was at home with the mother’s housemate, a man called Mr C, the father took X and has since not returned him.  The father says that the reason he acted in that way was because he is concerned about the child’s welfare, and on questioning from me, he recited the following narrative of events.

7. He said that on the night of 30 June he saw the mother’s car outside the house of a well-known drug dealer in City B.  He does not remember the address.  He said that he stopped and walked over to the car and he saw an unknown male in the car.  The mother was not there, apparently she was inside, and he asked the unknown male what the mother was doing.  According to the father, the unknown male replied to the effect that she was, “buying bags”, which the father explained was a reference to cannabis.  Just why the unknown male should inform the father, who on the father’s narrative of events was unknown to him, that the mother was engaged in criminal activity is unstated.

8. The father said that he then drove to the mother’s home because he was concerned that the child was exposed to criminal behaviour, in particular drug trafficking, because the father said he believed that the mother was about to engage in transporting cannabis to City D for sale.  The father initially told me that when he went to the house he spoke to the mother’s housemate, Mr C, who in effect gave him permission to remove the child.

9. Later, he told me that he also saw Mr C loading a motor vehicle with cannabis, presumably for transport to City D or somewhere else.  He at one point, told me that he also saw the mother’s car being loaded with drugs as well but when I questioned him about that he retreated from that assertion and said that he did not actually see the mother’s car being loaded with drugs.

10. He said that once he had the child in his possession, he noticed that there were sores that looked suspiciously like cigarette butts in three places on the child’s body: above the left elbow, on the right shoulder and three sores below the child’s left knee.

11. He said that the next day he took the child to the City D clinic of E Clinic, an Aboriginal health service.  The father said that on that occasion he was provided with a letter.  He was unable to send the letter to court but he read the letter to me and the terms of it, as far as I record from my note, are as follows.  It is a document dated 1 July 2020.  It was prepared by what appears to be a medical practitioner, Mr F, and it says that it is a medical certificate.  It goes on to certify that X attended at the clinic with his father and I think with the paternal grandmother. 

12. The certificate went on to say “X has sores and rhinorrhoea” and then goes on to talk about the child’s treatment.  There is no mention in the certificate that the sores look suspiciously like cigarette burns.  The father told me that the doctor did not say to him that he, the doctor, would make a mandatory report, as would be required if the medical practitioner or health practitioner suspected that the child had been exposed to harm or had suffered harm, to the child welfare authorities.  So I take it from that that there is no evidence that a mandatory report was made, and I take it from that that the health practitioner did not have a basis for a reasonable suspicion that the child had been harmed.

13. The father also read me a document dated 14 July 2020 which referred to the child’s immunisation records.  The letter confirmed that the child’s immunisations were not up to date and despite the fact that the child was two-and-a-half he had only received the immunisations due at age two years and four months.  The clinic said that it would ensure that the child’s immunisation was brought up to date over the next six months.  The letter also went on to say that the child appears to have a good relationship with his father.  I might say, none of that is particularly in issue.  However, there was no mention, again, in that document of cigarette burns or of any suspicion of cigarette burns.

14. I asked the father whether there was any other investigation of what he had suspected may be cigarette burns.  He told me there was not any other investigation.  He told me that on each occasion he had visited the clinic, certainly on the first occasion, he had been advised that the sores may be school sores.  Whether or not they were cigarette burns was not excluded but there was nothing beyond speculation possible.

15. The father also told me that last week, he went to Territory Families and had a discussion with Territory Families and is receiving some support. 

16. I should also say that the mother said that on 30 June 2020 that apparently the mother’s housemate Mr C and others went to the father’s house.  On that date a physical fight ensued, which is one of the reasons why, unless there is a proper reason, a child should not be unilaterally removed from parental care.

17. I am not satisfied that there is any proper basis for the conduct of the father in removing the child unilaterally from the mother’s care.  He has had the child medically examined and there is nothing to suggest the child has been subjected to deliberate harm by any person.  There is nothing whatsoever to suggest that there was urgency of a kind which would require the immediate removal of the child from the mother’s care, and I am satisfied that the child ought to be returned to the mother’s care until all these matters can be properly explored and examined.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 10 August 2020