Dansey & Dansey (No 5)

[2024] FedCFamC1F 153

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dansey & Dansey (No 5) [2024] FedCFamC1F 153

File number(s):	SYC 3614 of 2021
Judgment of:	ALTOBELLI J
Date of judgment:	16 February 2024
Catchwords:	FAMILY LAW – Parenting – Interim proceedings – Where final orders were made in December 2023 – Where the father has filed an urgent Application in a Proceeding seeking to suspend time between the children and the mother – Where the mother is yet to file any material – Urgent interim orders made suspending time.
Division:	Division 1 First Instance
Number of paragraphs:	15
Date of hearing:	16 February 2024
Place:	Sydney
Counsel for the Applicant:	Ms Vohra SC
Solicitor for the Applicant:	Pearson Emerson Lawyers
The Respondent:	Litigant in person
Solicitor for the Independent Children's Lawyer:	G & D Lawyers

ORDERS

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DANSEY

Applicant

AND:

MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	16 FEBRUARY 2024

Amended pursuant to r 10.13(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 28 February 2024

THE COURT ORDERS THAT:

1.The matter is listed for interim hearing on 7 March 2024 at 9am.

2.By no later than 4pm on 1 February March 2024, the Respondent mother is to file and serve a Response to an Application in a Proceeding, together with one consolidated affidavit in support of the orders sought by her.

3.By no later than 4pm on 5 February March 2024, each party is to file and serve a Case Outline document, setting out:

(a)a list of documents to be read in their case;

(b)a precise Minute of Orders Sought; and

(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

Recovery Order

4.In the event that X born 2012 is not in the care of the Applicant father (“the father”) at 5.00 pm on the date of these orders, the Respondent mother (“the mother”) shall return X to the father’s home at AK Street, Suburb GG NSW promptly thereafter.

5.A recovery order for the return of X to the father shall be issued to lie in the Sydney Registry.

6.The father’s legal representatives shall notify my chambers via email to …@... after 5.00 pm today if X is not returned to the father in accordance with Order 4.

7.In the event X is not delivered in accordance with Order 4 and notification as described in Order 6 is received by my chambers, the recovery order in Order 5 shall be activated.

Independent Children’s Lawyer

8.Pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”), Mr Graeme Ulbrick of G & D Lawyers be re-appointed as the Independent Children's Lawyer for the purposes of any further parenting proceedings.

9.The Independent Children’s Lawyer is granted leave to relist the proceedings on 48 hours’ notice.

Section 68Q Declaration

10.Pursuant to s 68Q of the Act, it is hereby declared that the Provisional Order: Apprehended Domestic Violence Order dated early 2024 against the father for the protection of X is inconsistent with the entirety of the scheme of the orders made herein and of those made on 13 December 2023 and thus invalid.

Suspension of mother’s time

11.Pending further order, the time which the children spend with the mother pursuant to Order 7 of the orders made on 13 December 2023 is hereby suspended from the date of these orders.

12.During the period of no time with the mother, the mother be restrained by injunction from:

(a)Allowing the children to have a key to her home;

(b)Approaching the children, and allowing the children or encouraging them to approach her;

(c)Communicating with the children by telephone call, letter, text message, video call, email or any other messenger app or social media app, or gaming platform, including responding to any messages, emails or letters received by her from the children or any calls placed to her by the children, except as may be agreed between the parties in writing;

(d)Attending the premises of any school attended by the children; and

(e)Attending the venue or location of any extracurricular activity or social activity participated in by the children.

Release of Documents

13.The father have leave to provide copies of the Reasons for Judgment dated 13 December 2023 and the reports of Dr U dated 10 June 2023 and 16 August 2022 and of Dr V dated 12 February 2023 to the following:

(a)The NSW Police Force;

(b)The counsellors employed by QQ School;

(c)The father’s legal representatives in relation to the Application for an Apprehended Domestic Violence Order for X’s protection; and

(d)The Department of Communities and Justice.

Slip Rule Amendment

14.Pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Order 33 of the orders made on 13 December 2023 is varied to read as follows:

The father shall do all acts and things to facilitate [X’s] attendance upon [Ms DD] or upon a female clinical psychologist. The costs of [X’s] attendance are to be shared equally between the parties.

Release of s 69ZW Material

15.The information provided by the NSW Police in response to the s 69ZW order dated 16 February 2024 be released to the mother, the father’s legal practitioners only and the Independent Children’s Lawyer.

16.The mother, the father’s legal practitioners only and the Independent Children’s Lawyer may inspect and photocopy the documents produced by the NSW Police in response to the s 69ZW order dated 16 February 2024 in these proceedings.

17.The parties and their legal representatives are restrained from providing a copy of the documents produced by the NSW Police in response to the s 69ZW order dated 16 February 2024 in these proceedings or disclosing their contents to any other person without an order of this Court, save that the mother may disclose their contents to her legal representatives.

18.The parties, the legal representatives and the Independent Children’s Lawyer must ensure that any copies of material produced to the Court in response to the s 69ZW order dated 16 February 2024 are destroyed or returned to the Court at the finalisation of the proceedings.

THE COURT NOTES THAT:

A.The father’s legal representatives are to ensure the documents produced by the NSW Police in response to the s 69ZW order dated 16 February 2024 are not provided to the father or to his legal representatives in his criminal proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

1. This matter comes before me in a situation of significant urgency and on very short notice.

2. The material before the Court is the father’s Application in a Proceeding, together with his affidavit in support.  I observe that the provisional apprehended violence order is actually attached to the affidavit, and that which Ms Vohra was reading to me on the record was, in fact, attached to the affidavit of the father (“the father”). 

   DISCUSSION

3. I mentioned to everyone that, during the course of this matter, that is to say, literally after we started at 2.00 pm, material that I had requested under s 69ZW of the Family Law Act 1975 (Cth), through the co-located worker here in the Lionel Bowen Building in Sydney has produced, namely, various police records known as COPS records.

4. It is interesting to reflect on how far the family law system has come.  I digress, and to reflect on the fact that such highly relevant information can be made available so instantaneously, whereas a matter of years ago, a decision as critical as this for the children and for the parents would literally have been made in the dark.  But the problem that is created by the instantaneous availability of material, when coupled with the urgency of the situation and the need to make an order, is that the Court is appraised of material by way of business records from New South Wales police that the parties have not.

5. Whilst I accept that, in the normal course, that would be fundamentally unfair, sometimes rules of fairness have to succumb to the practical realities of urgent decisions that need to be made in relation to children.  For example, it’s after 3.00 pm and Y has to be picked up from school.  At 5.00 pm, his sister, X, will be completing her activity and also needs to be picked up, and the question that I’m asked to decide, on a temporary and urgent basis, is whether they should go straight into the father’s care, and whether their time with the mother (“the mother”) should be suspended at least for the short period until 7 March.

6. One piece of information that has come to the Court’s knowledge, but which I accept is not yet available to the parties, is an event record dated 14 February 2024 (Reference E…).  It is a record created at 10.48 pm.  It would seem to be that the person creating the record is Officer AL of the Region AM PAC, which I presume means Police Area Command.

7. The narrative of this document states as follows, and I read it onto the record and I simply make the observation that I will be releasing these documents to all parties in the appropriate course after I have delivered these ex-tempore reasons.  The narrative of the document states as follows:

   About 9.40 pm on 14 February 2024, police attended -

   Upon arrival, police engaged in a conversation with the mother, who expressed her ongoing concern as she had not received any communication from her child.  Due to the high risk rating, police informed her of their intention to release a photo of the MP to the media and on social platforms, as well as sending out geotargeted message.  Police were of the opinion that there was an apparent lack of cooperation in locating her child.  Police were aware of the MP starting at a new school, and as such, police reiterated the potential consequences of public exposure for the MP which could have been embarrassing for the MP.

   Despite this, the mother reiterated her claim of not knowing the MP’s whereabouts.  Consequently, the police requested access to the MP’s room to gather any relevant information that could assist.

   Upon entering the room, police located the MP concealed beneath the bed covers, prompting a surprised reaction from the mother.  The MP became visibly distressed, expressing reluctance to accompany her father.  In response, the police reassured her that their primary concern was her safety.  Following this, the MP was sighted by the police and left in the care of her mother.

8. Now, of course, in the context of the events of this afternoon, this is the only document that I have managed to look at, but it is a document that does raise some concern, at least in the sense that the police were concerned about the level of cooperation that the mother was giving in the investigation about where X was on this occasion.

9. But for this document, for example, a reasonable inference that I could have formed, as the person having to decide this case, was that X was out there somewhere in the night time, potentially at physical risk, let alone emotional risk, but what this document suggests is that, certainly, at about 9.40 pm on the evening in question, she was in bed at home, that is, the mother’s home. 

10. I note, of course, that they record the mother’s surprise at finding X there.  I do not rule out the possibility that, when this matter is subjected to a proper forensic scrutiny, that a possibility is that X returned to her bed in the mother’s home without the mother’s knowledge. I do not rule that out as a final finding. 

11. However, in the context of an interim proceeding, where my focus is on risk management, and indeed, I think I explained to the mother that what I was doing this afternoon was crisis management, a concept with which she agreed, or at least could understand. In that context, the document assumes a different perspective, and where the focus is on the police perception that the mother was less than cooperative.

12. The difficulty that I face in making a decision, even a short-term decision, is that X seems to be very self-entitled and doesn’t appear to respect the orders that have been made in this case and authority figures generally, though I suspect that one police officer managed to convince her to do what the orders have said.

13. This is a matter that has been litigated up hill and down dale over many, many days, and where findings, I respectfully suggest, were very carefully made.  Ms Vohra, on behalf of the father, has alluded to the possibility that what was seen here is the repeat of a pattern that is actually reflected in my reasons for judgment and in the history of this matter.  That is indeed a possibility.

14. As I explained to the mother, my concern is that, if I do nothing, then nothing will change and X will continue to believe that she is entitled to do what she wants.  However, if I do something, there is equally a risk.  One of the most chilling things about the document that I’m holding, namely, the police record of the date in question, is the response of X: 

    She became visibly distressed, expressing reluctance to accompany her father.

15. The emotional impact on X, of ordering her to return to the father and to enforce that order, if necessary, by way of recovery order, is of concern to the Court.  But so is X’s current behaviour and her sense of entitlement.  On balance, and accepting that this is by no means clear-cut, I think that the least risk to X in the long-term is that I make orders consistent with those sought on behalf of the father and supported by the Independent Children’s Lawyer, at least for a period of weeks until such time everyone, but especially the parties, will have the ability to look at the evidence in greater detail, and the Court might be able to make a more informed decision about how to proceed after that point.  I emphasise to all parties concerned that this is a temporary decision. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli.

Associate: 

Dated:       16 February 2024