Dawson and Winton and Anor

[2014] FamCA 1196

FAMILY COURT OF AUSTRALIA

DAWSON & WINTON AND ANOR [2014] FamCA 1196

FAMILY LAW – CHILDREN – Recovery Order – Urgent – where the maternal grandmother has sole parental responsibility for the child – where there is no order for spending time with the paternal grandmother or the father – where the paternal grandmother and father have unlawfully removed the child – heard on ex parte and urgent basis – where Recovery Order made.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Dawson

1st RESPONDENT: Mr Winton

2nd RESPONDENT: Ms Winton

FILE NUMBER: PAC 6079 of 2007

DATE DELIVERED: 12 December 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Ms Gerloff on Duty Basis
1ST RESPONDENT:	No Appearance
2ND RESPONDENT:	No appearance

Orders

1. That a Recovery Order be issued to the Marshal of this Court and the police officers in all States and Territories to recover the child D DAWSON born … 2003 and return that child to the maternal grandmother, Ms Dawson ...

2. That all State and Federal Police shall be authorised and directed with such assistance as is required and if necessary by force:

   (a)       To stop and search any vehicle, vessel or aircraft and search any premises or place for the purposes of finding the child, D Dawson born … 2003; and

   (b)       To recover the child D Dawson and deliver the child to the maternal grandmother.

3. The father Mr Winton and paternal grandmother Ms Winton are prohibited from again removing the child from the maternal grandmother.

4. Pursuant to Family Law Act 1975 (Cth), s 68C, a Police Officer, including a member of the NSW Police, may arrest the Respondent father and/or Respondent paternal grandmother without warrant in the event that either of them again take possession of the child.

5. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawson & Winton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6079 of 2007

Ms Dawson

Applicant

And

Mr Winton

First Respondent

And

Ms Winton

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Recovery Order in relation to D (“the child”), an 11 year old aboriginal boy who lives, pursuant to Orders of this Court, with his maternal grandmother, Ms Dawson.

2. As was noted when the last parenting orders were made in relation to this child on 5 September 2014, the child’s grandmothers have been involved in a battle over him for most of his life and the application today unfortunately seems to be yet another round in those proceedings.

3. The legislation, (The Family Law Act 1975 (Cth) (‘the Act’)) provides that in proceedings for a Recovery Order the Court may subject to section 67V makes such Recovery Order as it thinks proper and section 67V provides that in deciding whether to make a Recovery Order in relation to the child, a Court must regard the best interest of child as paramount consideration.

4. Before I go on any further in dealing with the application, I note that this is an application for an order which has not been served on either of the respondents, the respondents being the paternal grandmother, Ms Winton and the natural father, Mr Winton.

5. The circumstances are that the child, who as I have indicated is under sole parental responsibility of maternal grandmother, went missing after school on Wednesday afternoon and inquiries by the maternal grandmother tracked him down initially through the Police as having been located in Town E and believed to be with his father.  She has subsequently received information that the child has been seen in Town E with his paternal grandmother. Town E was the home of the father and the paternal grandmother at the time of the previous proceedings. So there does seem to be certainly some credence to that information that’s being given, noting in particular that some of that information is said to be given by the Police, which I would regard as reliable. Though I say in passing that it is quite concerning that nobody made an effort from the police to contact the person who has sole parental responsibility, in relation to an 11 year old child, and simply recorded on the computer that he was in the care of his father, who is not named as a person with parental responsibility under the court orders.

6. Although the applicant is aware that the paternal grandmother and father reside in Town E, she has no current address for them and was unable to serve the application prior to the matter coming before court.  Being an application for a Recovery Order in respect of an 11 year old child who has been missing from the home where he is meant to be residing under court orders, by definition it is a matter which has some urgency. For these reasons I dispense with service and deal with the matter on both an ex parte and urgent basis.

7. As indicated, I gave a judgment in relation to the child D on 5 September 2014, following an undefended or ex parte hearing.  That was the third set of proceedings in relation to the child and each of those sets of proceedings has been a contest between the paternal and maternal grandmothers.  Each of those proceedings has been resolved by the child residing with the maternal grandmother, who is now the applicant.  The paternal grandmother has previously taken action that is very similar to the action that she appears to have taken in this case. Previously, the action was less concerning in the sense that she wrongfully retained the child after time spent with him in the school holidays but this particular allegation seems to be more concerning, because there seems to have been an action, in effect, removal of him from the care of the maternal grandmother. Again I stress we are talking about a child who is only 11 years of age.  It does appear likely that he is with paternal side of the family in Town E and for the reasons given in the decision of 5 September 2014 I have some real concerns about the safety of the child in the paternal grandmother’s home.

8. Some of the issues that I referred to in that decision (and I reiterate that it was a judgment in which the paternal grandmother was to have no time with the child and there was also no order made for time with his father) are as follows. In relation to the primary consideration of the benefit of the child having a meaningful relationship with his parents and also with the paternal grandmother, (though noting that the primary consideration was not directed towards a grandparent), I noted significant concerns about the relationship between the child and his father, and the child and his paternal grandmother.

9. So far as his father is concerned, although in a report of May 2009 a psychiatrist expressed the view that the child had a close loving relationship with his father, the father did not attend second interview with the expert in the second round of proceedings. The expert noted that as the father has a significant brain injury this may affect his overall emotional and behavioural controls, and that any time the child spends with his father, should be monitored by family members.  At that time the paternal grandmother had discontinued her application and there was no proposal before the court setting out how the relationship between the child and his father could be supported.

10. I made a finding at that stage that on the basis of past events there seemed to be little positive benefit to be derived by the child in crafting orders to foster that relationship with his father when no other paternal family member was interested in promoting that relationship in a safe way for the child.

11. It was noted that the child had been exposed to physical and psychological harm from a very young age but none of those concerns which were alleged against the maternal grandmother, this applicant, had been made out.

12. So far as the child’s views at the time of the second report of May 2013 were concerned, the expert was of the opinion that the child’s behaviour indicated that he wanted to be with maternal grandmother.  Today, it has been suggested in the applicant’s affidavit that the child himself may have played some part in removing himself to Town E. However, the child has throughout all of the sets of proceedings, at times behaved in a way which demonstrates his conflict of loyalties and to the extent that any role the child may have played in contacting his father or paternal grandmother in asking them to collect him, which indicates his views, I do not attach any weight to those views.

13. The expert had found that the maternal grandmother, this applicant was the child’s primary attachment figure and both reports also said that he had a close and loving relationship with her.  The expert said that the child had a grandparent relationship with his paternal grandmother but did not show the same attachment behaviour as with the maternal grandmother. 

14. In his second report of May 2013, the expert also had many criticisms of the paternal grandmother and in relation to their relationship; he said she did not appear to be very affectionate and closely attuned to the child emotionally.

15. As far as the likely effect of any change in the child’s circumstances are concerned, if this order is made the child will be returned to the circumstances in which he has been living all of his life.  I am concerned that what may have happened in this matter is that the paternal family have decided that they would like to see the child and rather than bringing legal proceedings or participate in the recent ones in the appropriate matter, they have simply taken unilateral action contrary to the court orders.

16. If I do not make the Recovery Order that is sought I would be concerned that what will happen is another round of allegations made by the paternal family against the maternal grandmother and it will also reinforce the paternal family’s mind that an appropriate way to take action is to simply take the child into their care when they feel like that rather than follow orders of the court.

17. There are some concerns about the capacity of the paternal grandmother and the father in caring for the child. In fact in the second report, Dr C said he held major concerns about the paternal grandmother’s ability to provide substantial care for the child. He originally said he was of the opinion that she probably still had a role in the limited capacity as a contact parent but allowing the child to remain with her when she has been a party to unlawfully removing him from the care of the maternal grandmother who has sole parental responsibility is not the way to encourage that role. If she wished to pursue that she should have participated in the proceedings.

18. There were issues such as the child’s aboriginality and concerns about family violence were also noted in those orders.

19. In summary, I carefully went through, as I have indicated for the third time, all of the issues relating to the best interests of the child only three months ago.  I am informed in the affidavit that the child has settled since the proceedings have settled and on the basis of the prior history of the matter, I accept that that is the case.

20. The only evidence I have before me tends to indicate that the paternal grandmother and father have been involved in removing the child from the care of the person who has sole parental responsibility for him and who he lives with, in circumstances where neither of them are parties with whom the child is to spend time with under those orders.

21. In those circumstances I am of the view that it is in the best interests of the child for the Recovery Order to be made.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 December 2014.

Legal Associate: 

Date:  23 December 2014.