DREW & JENSEN
[2017] FCCA 656
•13 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DREW & JENSEN | [2017] FCCA 656 |
| Catchwords: FAMILY LAW – Interim parenting – where ex parte recovery order obtained in Local Court – circumstances when ex parte recovery orders should be ordered – duty on lawyer in ex parte proceedings – duty on lawyers for applicants for recovery – duty of disclosure on applicant for recovery – where father’s evidence in support of recovery is less than frank – where father’s own evidence as well as independent material raises serious concerns about family violence – where children should live with mother and spend time with father. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 67Q 67R, 67S, 67V, 67X Federal Circuit Court Rules 2001, r.5.03 |
| Cases cited: Eaby & Speelman (2015) FLC 93-654 Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 Myrtle & Myrtle [2012] FamCA 460 Law Council of Australia, Family Law Section, Best Practice Guidelines for Lawyers Doing Family Law Work (2nd ed. 2010) |
| Applicant: | MS DREW |
| Respondent: | MR JENSEN |
| File Number: | WOC 288 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 30 March 2017 |
| Date of Last Submission: | 30 March 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 13 April 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid NSW |
| Solicitors for the Respondent: | Lukes Law from 30 March 2017 |
| Solicitors for the Respondent: | Able Defence Lawyers before 30 March 2017 |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parties have equal shared parental responsibility for the Children X, born (omitted) 2011 and Y, born (omitted) 2015 (‘the children’).
The children live with the Mother, effective from 4:00pm today.
The children spend time with the Father each alternate weekend from Saturday 10:00am to 4:00pm Sunday, commencing from 22 April 2017.
Changeover at (omitted) Railway Station.
The Father is restrained from approaching the children or coming within 100 metres of their schools without the prior written consent of the mother.
The Father is restrained from entering at, or coming within 100 metres of
(a)the place of residence of the mother and the children, and
(b)any school or educational institution attended by the child, unless otherwise provided in these orders
The recovery order made 28 February 2017 be discharged.
THE COURT FURTHER ORDERS THAT:
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Children X, born (omitted) 2011 and Y, born (omitted) 2015, and the Legal Aid Commission of New South Wales is requested to provide such representation.
The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.
Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings.
Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.
The matter be adjourned to 14 July 2017 at 9:30am for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Drew & Jensen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 288 of 2017
| MS DREW |
Applicant
And
| MR JENSEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, X, born (omitted) 2011, 5½ years old, and her brother, Y, born (omitted) 2015, nearly 2 years old. When the relationship between the children’s parents ended on 19 January 2017, the Mother took the children and left the former matrimonial home. On 14 February 2017, the Father, through his Solicitor, commenced proceedings to recover the children in a Local Court. That order was made on 28 February 2017. The recovery order was not, in fact, executed until 9 March 2017. With the intervention of the police, the children were taken away from their mother, and delivered into their father’s care. On 15 March 2017, the Mother commenced the present proceedings in this Court. Unlike the proceedings in the Local Court, the present proceedings did not proceed on an ex parte basis. Nonetheless, the matter came before me for the first time on 17 March 2017, two days after filing.
These Reasons for Judgment explain the further interim Orders made in this matter, and in so doing, it is necessary to traverse in detail the recovery order proceedings filed in the Local Court, as well as subsequent evidence.
Background
By way of background, the Father is 56 years old and the Mother is 33 years old. He is of Australian background and she is of (nationality omitted) background. They commenced cohabitation in (country omitted) in 2010. They returned to Australia to live in July 2015. It is apparent from the evidence of both parents that their relationship deteriorated between the time they returned to Australia and the date of separation. In short, the Father’s case is that he was nonetheless very surprised when the Mother unilaterally took the children and left the home. He had the gravest fears that she would, somehow, take the children back to (country omitted) (despite the fact that he controlled possession of both children’s passports). The Mother’s case, briefly stated, is that she left the home in the circumstances she did as she was fleeing family violence. She was concerned about her welfare, as well as that of the children. The Father’s response to this is that the Mother’s claims about family violence are unsubstantiated and denied.
Competing proposals
There is an existing order for equal shared parental responsibility. Neither parent invited the Court to depart from that.
The Mother proposed that the children live with her and spend time with the Father each alternate weekend from Saturday 10:00am until 4:00pm Sunday, with changeover to occur at (omitted) Railway Station. She also sought injunctions for the personal protection of the children and herself.
The Father proposed that the children live with him and spend time with the Mother each alternate weekend from after school on Friday to before school on Monday, and each Wednesday from after school to 7:00pm. He also proposed orders for school holidays and special occasions. On his proposal, changeover would occur at school.
The evidence
In the Mother’s case, reliance was placed on:
·Initiating Application, filed 15 March 2017;
·Notice of Risk, filed 15 March 2017;
·Affidavit of Ms Drew, affirmed 14 March 2017; and
·Affidavit of Ms Drew, affirmed 28 March 2017.
In the Father’s case, reliance was placed on:
·Initiating Application, filed at the Campbelltown Local Court (filing date unknown);
·Notice of Risk, filed at the Campbelltown Local Court (filing date unknown);
·Affidavit of Mr Jensen, sworn/affirmed 14 February 2017, filed at the Campbelltown Local Court (filing date unknown);
·Response, filed 24 March 2017;
·Notice of Risk, filed 24 March 2017;
·Affidavit of Mr Jensen, sworn/affirmed 17 March 2017; and
·Affidavit of Mr Jensen, sworn/affirmed 21 March 2017.
The applicable law
The legislation
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
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.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(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).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Family violence is defined in s.4AB of the Act:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In the Full Court’s recent decision in Saleh & Saleh [2016] FamCAFC 100, the Court considered how disputed and untested allegations of family violence are treated in interim parenting proceedings. The Court made a number of important points, including:
a)Section 60CC requires a Court, when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. This is a requirement that does not really depend on there being findings of family violence, but focuses on risk, which can exist independently of disputed allegations;
b)Section 61DA is in mandatory terms: “the Court must apply a presumption” that is in the best interests of a child for there to be an order for equal shared parental responsibility. Section 61DA(3) states that the presumption still applies “unless the Court considers that it would not be appropriate in the circumstances” for the presumption to be applied in making an interim order. Section 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. It requires a cautious approach especially in the context of s.60CG.
c)Paragraph [68] in Goode, where the Full Court warns against inappropriately being drawn into matters of contentious fact, does not mean that merely because facts are in dispute, the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts: Eaby & Speelman (2015) FLC 93-654.
d)An acknowledgement that at an interim hearing, a Judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible to simply ignore an assertion because its accuracy has been put in issue: SS & AH [2010] FamCAFC 13. This applies especially to family violence allegations.
e)There is no requirement for corroboration or objective support for an allegation of family violence. Family violence often takes place in private, in circumstances where no corroboration is available.
f)A reference to the civil standard of proof is entirely inapt in the context of disputed family violence allegations in interim hearings.
g)It is unwise to simply ignore family violence allegations and find that the presumption of equal shared parental responsibility applies.
Recovery orders
Section 67Q states:
Meaning of recovery order
A recovery order is an order made by a court doing all or any of the following:
(a) requiring the return of a child to:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child;
(b) authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding a child;
(c) authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to recover a child;
(d) authorising or directing a person to whom a child is returned, or who recovers a child, to deliver the child to:
(i) a parent of the child; or
(ii) a person described in subparagraph (a)(ii), (iii), (iv) or (v); or
(iii) some other person on behalf of a person described in subparagraph (i) or (ii);
(e) giving directions about the day-to-day care of a child until the child is returned or delivered to another person;
(f) prohibiting a person from again removing or taking possession of a child;
(g) authorising or directing a person to arrest, without warrant, a person who again removes or takes possession of a child.
Section 67V states:
Child's best interests paramount consideration in making a recovery order
In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a court determines a child's best interests.
The serious ramifications of the making of a recovery order may be discerned from ss 67R, 67S and 67X.
An application for a recovery order is often made in urgent circumstances. Rule 5.03 of the Federal Circuit Court Rules 2001 (hereafter referred to as ‘the Rules) states in this regard:
(1) Unless the Court otherwise orders, the applicant must establish by affidavit or, with the leave of the Court, orally:
(a) whether there are previous proceedings between the parties and, if so, the nature of the proceedings; and
(b) whether there are any current proceedings in any court in which the applicant or the respondent are parties; and
(c) the particulars of any orders currently in force between the parties, including the courts in which they were made; and
(d) the steps that have been taken to tell the respondent or the respondent's legal representative of the applicant's intention to make the application or the reasons why no steps were taken; and
(e) the nature and immediacy of the damage or harm which may result if the order is not made; and
(f) why the making of the order is a matter of urgency and why an abridgement of the time for service of the application and the fixing of an early hearing date would not be more appropriate; and
(g) if the application relates to a financial matter, the capacity of the applicant to give an undertaking as to damages; and
(h) the other facts, matters and circumstances relied on by the applicant in support of the application.
In Kennedy & Kennedy (1993) FLC 92-409, Baker J stated at 80,189:
An ex parte order, in my view, should not be made except in extreme circumstances and only if the physical, sexual and emotional welfare of children is at risk.
The making of an ex parte order can frequently place the respondent to the application in an irretrievable position and may place the children in an impossible position, at least in the short term.
The Full Court in Sieling & Sieling (1979) FLC 90-627 and Rainer & Rainer (1982) FLC 91-239 considered the principles to be applied in these types of cases.
Duties on lawyers and parties
A lawyer representing an applicant for a recovery order has a very substantial duty to the Court. That lawyer must neither mislead the Court, nor allow the Court to be misled by the material placed before the Court, or by any representation made to it. This Court respectfully adopts the comments of FM Neville (as he then was) in Stiles & Bale [2008] FMCAfam 657 at [27]-[54] inclusive. For present purposes, only what appears to be His Honour’s summary at [54] will be reproduced in these reasons:
54. It is clear that the duty to the court extends to ensuring that no evidence is put before the court that is misleading. This dimension of the duty includes a lawyer ensuring that no statement, or pleading for that matter, which is perjured or that contains half-truths, which thereby may otherwise mislead the court. This will more than suffice in relation to judicial pronouncements regarding duties of lawyers to the court. It remains to consider and to apply these principles to the facts and circumstances of the facts of the matter currently before the Court.
The Best Practice Guidelines for Lawyers Doing Family Law Work discusses applications without notice at 3.1 at 3.2 of Part 10:
3.1 An application for an injunction may be made by one party without notice to the other (an ‘ex parte’ application). In such a case, the applicant’s lawyer is under a duty to inform the court of any matters within the lawyer’s knowledge which are not protected by legal professional privilege and which would support an argument against the granting of an injunction or limit the terms of the injunction adversely to his or her client.
3.2 If an injunction is appropriate, an ex parte application should be discussed. The issues to consider are:
- whether the client may be in danger, whether valuable property is about to be dissipated, or whether vital evidence is about to be destroyed or removed if proceedings are not instituted on an ex parte basis
- the seriousness of the threat to the client, property, or evidence, including whether it is urgent and imminent the likelihood of the court granting an ex parte order, which it will only do if there is a real and urgent need to protect a person or property
- whether proceedings ex parte may escalate the danger to the clients, and
- the court’s preference for alternative measures, such as permission to bring the application on short notice.
These Guidelines refer to injunctions. A recovery order is a form of mandatory injunction, indeed a very drastic form, as the statutory scheme suggests. There is no reason in principle why the law about injunctions, especially ex parte injunctions, should not apply to recovery orders.
In Myrtle & Myrtle [2012] FamCA 460, Kent J noted at [334]-[335]:
334. The duties of litigants and their legal representatives to act with candour on an ex parte application are well-established. All the facts relevant to the relief sought, whether or not that supports the grant of the relief, must be laid before the Court.
335. Aside from this duty, the failure to disclose a material fact in an ex parte application for an injunction, subsequently exposed on the next return date, commonly leads to the discharge of the injunction whether or not, if the disclosure had been made, the injunction would still have been granted.
Kent J referred to the High Court in Thomas A Edison Ltd v Bullock [1912] HCA 72 at [334], where the Court stated:
Dalglish v. Jarvie, a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall.
Kent J also referred to the statement of Nygh J in Mobasser & Nankervis (1983) FLC 91-335:
It is a well known principle of law that in order to obtain an ex parte order, full and frank disclosure must be made of all the relevant circumstances; not only those which support the wife's case, but also of facts and circumstances which do not support the wife's case. It is like a contract of uberrimae fidei, an obligation not merely not to misrepresent but also to disclose all material facts.
Lest there be any doubt, this Court considers that the obligation of disclosure discussed in these authorities apply as much to parties as to their lawyers. When a party fails to disclose relevant information to the Court in a parenting case, this may reflect adversely on their capacity to provide for the emotional needs of the child [s.60CC(3)(f)] (because of the emotional trauma associated with the recovery for example) and their attitude to the child and to the responsibility of parenthood [s.60CC(3)(i)]. It is, in any event, certainly a fact or circumstance that a Court might consider relevant [s.60CC(3)(m)].
Application made to the Local Court
It is important to examine the Application that was made to the Local Court, and the evidence that was placed before the learned Local Court Magistrate. The Application is dated 14 February 2017. Indeed, that is the date on which the Father swore his first Affidavit in the proceedings, and the one relied on in support of the Local Court proceedings. The first return date of the application is 28 February 2017, and the Solicitor for the Father appears to have convinced the Local Court Magistrate to proceed on an ex parte basis and to make a location order, a recovery order and an airport watch list order. The reasons of the learned Local Court Magistrate are not before this Court, nor is it suggested that they should be. These reasons for judgment should in no way be construed as a review of the learned Local Court Magistrate’s actions. The focus is on the Father’s actions.
The Father appears to have been ably represented by experienced lawyers, indeed a firm who regularly appears in this Court. It was somewhat surprising, therefore, that the present application would have been filed in a Local Court. It is not clear from the Local Court documents whether they were filed on 28 February and dealt with on that date, or whether they had been filed at an earlier date and made returnable on 28 February. What is clear, however, is that the Application and the Affidavit are both dated 14 February.
It is important to note the chronology of proceedings in this Court, however. The Mother filed her Application on 15 March, and less than 48 hours later on 17 March, the matter had been listed and dealt with (admittedly by telephone) and interim Orders made with the participation of both parties’ legal representatives. Indeed, the order made on 17 March 2017, pending further order, was for equal shared parental responsibility, for the children to live with their father, but spend time with their mother.
The obvious concern in the Court’s mind is why it took the Father and his legal representatives two weeks to bring proceedings in a non-specialised Court which resulted in ex parte Orders, when the Mother could bring her application in a specialised Court in two days?
In any event, the present focus is on the information that the Father, through his legal representatives, placed before the Local Court.
The Father sought interim Orders, including a location order, a recovery order, equal shared parental responsibility, that the children live with the Father, and spend time with their mother each alternate weekend from after school Friday to before school on Monday, each Wednesday from after school until 7:00pm, half of each school holiday period, and on special occasions. A watch list order was also sought.
What should have been clear from the orders sought by the Father is that whatever concerns he raised in his Affidavit (which will be considered shortly), those concerns did not warrant any particular restrictions or conditions on the Mother’s time. Indeed, the Father proposed a substantial and significant time order.
The Father caused to be filed a Notice of Risk. In that Notice he alleges that the children are at risk of being abused by their mother. The narrative he gives in his Notice of Risk refers to the Mother’s physical discipline of X and his concerns about the Mother’s mental health. He further alleges that there has been family violence perpetrated by the Mother against both the Father and X, by way of verbal abuse. Moreover, he inferentially casts doubt upon the Mother’s mental health by referring to an incident on 19 January 2017 when the Mother allegedly attempted to jump out of a moving car.
Despite the serious concerns raised in the Notice of Risk, the actual parenting Orders that he proposed at the time, indeed, continues to propose to this Court, suggests no restraint on the Mother’s behaviour as directed towards X and contains no proposal about the Mother seeking assistance about her alleged mental health condition. Having, no doubt, gained the attention of the person reading the Notice of Risk by alleging family violence and mental health issues, the Father also raised concerns about not knowing where the Mother and the children were, though he does not go on to raise concerns in the Notice of Risk about the children being removed from Australia.
There is another important allegation raised in the Notice of Risk, and that is that the Mother had falsely made an allegation against the Father of family violence on 26 January 2016. This will be considered in greater detail below.
The following becomes apparent from considering the Father’s Affidavit filed 14 February 2017. He gives background detail, including that he has two children from previous relationships, one who is 23 years old and one who is 12 years old. He explained that he keeps in contact with the older child, but not the younger one, A. It bears mentioning here that these historical matters are not just of biographical interest, but is part of the diverse constellation of matters that a Court takes into account in making its decisions about children, including assessing risk about them. Understanding the nature of the Father’s relationships with his previous children is relevant information in assessing the nature of the Father’s relationship with the children the subject of these proceedings. The Father’s Solicitor was clearly experienced enough to know that the Court would be interested in knowing what sort of relationship the Father had with his previous children and why it might be the case that he is not currently seeing them.
At paragraphs 12-16 of his Affidavit sworn 14 February 2017, the Father sets out his evidence as to why he is not spending any time with his daughter, A, 12 years old. He explains that he never had much of a relationship with her mother, Ms Y, as they had separated before the Father was told that she was pregnant. Apparently Ms H maintained a relationship with the paternal grandmother. The Father candidly deposes to having encouraged Ms Y not to go ahead with the pregnancy “as we were not together, but she didn’t listen.” He goes on to explain that he had no relationship with A because her Mother refused to bring her around to visit him and had, in any event, commenced a relationship with someone else before A had turned 1. He explains that he had moved to (country omitted) when A was 2 or 3 years old and did not have any contact with her. Finally, he asserts that after they returned to Australia in 2015, it was the Mother in the present proceedings who would not allow him to see A.
It goes without saying that it is critically important for any party who brings parenting proceedings to present all relevant information to the Court. If it were possible to have an even higher duty of disclosure in these circumstances, it arises when ex parte Orders are sought. Thus, the evidence the Father gives at paragraphs 12-16 is relatively benign, and even if it did not provide assurance to a judicial officer making an urgent decision, at the very least it did not raise anything to be concerned about.
The difficulty for the Father, however, is that this particular evidence, on which he relied in order to gain the recovery order, was plainly misleading in what it does not tell the Court. Moreover, the matters about to be discussed were plainly known to the Father.
The Mother’s Solicitor caused to be produced to the Court on short notice documents produced on subpoena by New South Wales Police. The first category of documents in this regard is the Father’s criminal history. The Father had a significant criminal history between 1978 and 2003. After 2003, however, the only charges recorded relate to an alleged violent incident with the Mother in these proceedings in 2016, which were dismissed. This will be discussed below.
Between 1978 and 2003 the Father was before the Court, and sentenced in relation to assault occasioning actual bodily harm, larceny, breach of a community service order, stealing, self-administering drugs, possession of a prohibited drug, supply prohibited drug, unlicensed driving, uninsured motor vehicle, unregistered motor vehicle, negligent driving, goods in custody, supply heroin, use heroin, and break, enter and steal. One significant factor in assessing the Father’s risk profile is the fact that his first charges and convictions occurred when he was a minor.
The significance of the criminal history in the context of examining the Father’s evidence at paragraphs 12-16 of his Affidavit filed in the Local Court is that his 2003 assault occasioning actual bodily harm convictions arose out of his assault of A’s mother, Ms Y. The COPS records make this clear. What this record states is:
On Monday 27 2003 around 11 am, the victim and the POI have continued to discuss their separation at which time the POI has grabbed the victim around the throat and started choking her violently. After a minute the victim has lost all energy and stopped struggling, at which time the POI has let her go. He has then made threats against her safety, stating that he was going to bash her and tie her up if she tried to leave. The POI has then made the victim sign RTA papers that would allow him to transfer a motorbike that is in her name over to his.
A subsequent COPS entry provides more detail:
Without warning the defendant has grabbed the victim around the throat with one hand and with the other has started pulling her hair. The defendant has then let go of her hair and placed it around the throat with the other hand and continued to choke the victim until she started to feel weak from struggling. She has then stopped fighting, and the defendant has let her go.
The Father’s criminal record indicates that on 26 February 2004 Fairfield Local Court found him guilty of assault occasioning actual bodily harm and imposed a two-year bond not to assault, molest, harass or otherwise interfere with Ms Y or incite any third party to do so. The Father appealed to the Parramatta District Court, who on 5 February 2004 confirmed the conviction.
Another factor that is relevant to risk assessment in this case is the nature of the Father’s violence against his former partner, i.e. it was not just physical, but it involved choking. The allegation against the Father, interestingly, also involves the pulling of the victim’s hair.
In any event, it is plainly the case that the Father, who must have known about these events and the charges and convictions against him, not only failed to disclose this information, but presented an even more disturbing half-truth before the judicial officer who was called on to make an urgent and ex parte decision about his children.
Let it be very clear – it is the opinion of this Court that any parent who has been violent to a former partner in the past, who has been convicted of the same, and who does not spend time or communicate with children from a previous relationship for reasons that include that violence, must put that material before the Court in all circumstances, let alone when ex parte Orders are sought.
The focus turns to the rest of the Father’s Affidavit. He deposed that the Mother did not work during the course of their relationship. While they were living in (country omitted) (2010-2015) he deposed to the fact that the Mother was X’s primary carer whilst he was at work. X went to preschool in the morning. He was involved in X’s care when he returned home from work. He then deposed that after Y was born and they were back in Australia, they shared the care of the children with the assistance of the paternal grandmother. The Father asserts that he was Y’s primary attachment figure. He does not make the same assertion in relation to X – indeed, he could not possibly make that assertion given his own evidence.
The Father deposed to the circumstances of separation on 19 January 2017. At paragraph 34 he states:
Ms Drew [the Mother] just kept silent as usual, and then as we drove through (omitted) she suddenly went hysterical and started screaming at me, ‘I’m fucking leaving you now!!’ Ms Drew then flung open the car door as we were driving and started trying to jump out of the car.
Indeed, at paragraph 35 he continues:
Whilst I was driving, I was trying to hold her so she couldn’t jump out and injure herself, and she kept hitting me and trying to undo her seatbelt. I managed to pull over to the left and stop the car at the kerb. She then jumped out. Still in a hysterical rage, she started to open the back door to try and remove X who was now crying.
What becomes apparent from this evidence is that the Father is not asserting that the Mother, in fact, jumped out of the moving car, but only that she attempted to do so. He characterises the Mother’s actions as hysterical.
The Father goes on in his Affidavit to explain that he had to stop in at a hardware store in (omitted) to cut some keys. This took about 15 minutes. When he got back, the children and the Mother were gone. He sets out his firm belief that this had all been carefully planned by the Mother.
At paragraph 47 of his Affidavit, the Father explains that he “drove straight home”, kept trying to ring the Mother on the telephone, but when he got home he “removed the children’s passports from where they were kept as I was worried she would try and take the children”. The evidence indicates the children have both Australian and (nationality omitted) passports, and the Father’s evidence is clear – he had them all. The basis of the Father’s concern that, notwithstanding this important fact, the Mother might still abscond with the children outside of Australia is far from clear.
Paragraph 57 is important. He deposes:
Two days after she left Ms Drew changed her phone number. Ms Drew has no family here, so I believe that she will be staying with one of her (nationality omitted) friends. I have tried to contact a number of her friends, but nobody has told me any information. I have also contacted Ms A’s husband, Mr S, who told me he didn’t know anything about it, however he said, “All what I know is she asked her for a ride to another friend from the (nationality omitted) group house. I don’t know who cause as you know I don’t even know their names.
The significance of this evidence is twofold. Firstly, the Father contends that the Mother changed her phone number two days after 19 January. However, the Mother’s evidence is quite clear – she sent messages to him on 28 February. Moreover, it is clear that the Father was still communicating with her as at 30 January 2017. This fact, i.e. the availability of telephone communication, as well as the Father’s knowledge about a range of the Mother’s friends, could have, indeed should have, on the facts of this case, raised the possibility of seeking an order for substituted service, rather than proceeding ex parte as the Father did.
The Father then gives evidence under the heading of family violence. At paragraph 58, for example, he deposed that “Ms Drew would often verbally attack X, and I’ve observed her on a number of occasions physically discipline her by hitting her.” Interestingly, whatever the Father’s concerns may have been in this regard, they are not reflected in any restraining orders sought either at the time or subsequently.
At paragraphs 59 and 65 the Father makes two significant admissions. At paragraph 59 he describes the arguments that he would have with the Mother and his frustration that she would often walk off whenever he wanted to speak. He states at 59: “A number of times as she was trying to leave I grabbed her arm so that she would stay and talk to me.” The Court observes this is clearly family violence within the definition of s.4AB of the Act.
At paragraph 65, in referring to events in March 2016, the Father deposed: “We argued for a few minutes, and in frustration I grabbed her t-shirt at the shoulder and said ….” Again, this is an admission of family violence within the definition of s.4AB.
A few paragraphs later, he explains that the police arrived, spoke to the Mother, arrested him, and he was charged with common assault and issued with a police AVO. It is clear from the Father’s evidence that he asserts that the alleged assault was his actions in grabbing the Mother’s t-shirt at the shoulder. He goes on to explain that he is aware that the Mother gave a statement to the police which includes an allegation that he pulled her hair. Whilst aware of this allegation, he does not deny the same.
He goes on to say that by the time he returned home from the police station, the Mother wanted to drop all the charges because she did not want to go to Court. He, in fact, pleaded not guilty. He asserts that the Mother did not come to the hearing, but wrote and signed a statement that it did not happen. However, the Judge did not want to see the statement, and the charge and AVO was dismissed because the Mother was not there.
What the police records establish, however, is that on 26 March 2016 the Father was, in fact, charged with two offences, common assault, and stalk/intimidate, intend fear, physical harm. The records confirm, however, that the charges were dismissed because no evidence was offered. The COPS entry for 26 March 2016 records:
The accused has grabbed the victim hair and pulled it, causing it to hurt the victim. The accused has then pushed the victim to the ground.
The entry records that the Mother ran out the front gate and down the road to a neighbour’s house, who was, apparently, sufficiently concerned to ring 000. The police attended at 11:45am (the incident allegedly occurring at 10:30am). The police observation of the Mother was that she “was crying and appeared visibly upset”.
What is of concern in relation to the Father’s disclosure about this incident is that his description of it was, “I grabbed her T-shirt at the shoulder”. He knew that the Mother also alleged that he pulled her hair, but he does not deny it. He also must have been aware of the Mother’s allegation that he pushed her to the ground – after all, he was charged with these offences. The disclosure was less than frank.
Another perspective on the evidence that the Father placed before the Local Court in support of the recovery order is gained from examining his subsequent Affidavits.
Father’s further evidence
The Father’s next Affidavit was sworn and filed on 17 March 2017 in the proceedings before this Court. He gives more details about what he described as the unilateral removal of his children. He provides the following evidence about family violence, at paragraphs 18-20:
18.I can say, however, that I deny completely the allegations of family violence.
19.I can say that there is no evidence or proof before the court that I have acted in any manner towards Ms Drew that would be family violence. I am not totally shocked at the claims being made by Ms Drew as I believe that she has been planning to leave me for some time.
20.It is very easy for someone to claim family violence today retrospectively, as is the case here. All of what Ms Drew is saying about family violence is lies.
21.The incident where Ms Drew lied to the police and had me arrested was later dismissed and I am certain that if there had been any truth to her claims that there would be evidence such as medical reports, police reports, photographs.
Regrettably, these paragraphs bear all the hallmarks of having been drafted by the Father himself, rather than by his lawyer. It is hard to imagine that any lawyer could have drafted paragraphs 19 and 20 in their present form. It is most regrettable that in such serious proceedings that, at the very least, a parent’s lawyer has not taken responsibility to at least edit what a client writes down as purported evidence. In any event, as noted above, the Father made two plain admissions about family violence in his Affidavit of 14 February 2017.
To put the Father’s affidavit of 17 March 2017 in context, it must be understood that, by then, he would have received the Mother’s Affidavit affirmed 14 March, filed 15 March, in support of her application to this Court. The Mother’s allegations about family violence in her Affidavit are extensively particularised. The Father’s affidavit of 17 March was probably prepared in haste.
The same could not be said, however, for the Father’s affidavit of 21 March 2017, relied on at the interim hearing on 30 March 2017. It is a substantial Affidavit consisting of 165 paragraphs, and at least 40 pages of annexures. By the time of this Affidavit, of course, the Father and his lawyers must have fully appreciated the reality that they now had to confront a case, the substance of which is that the Mother and the children had to flee the home on 19 January 2017 because of the Father’s family violence.
The Father deals with the family violence allegations at paragraphs 48-92. His evidence bears some significant characteristics. Again, the Court emphasises that its task in interim hearings involving such allegations is one of risk assessment. The Court would be concerned about the Father’s attitude to the family violence allegations, as manifested by his evidence, such that this increases the risk of family violence. For example, at paragraph 51, the Father deposes:
Every single argument/fight we ever had was started by Ms Drew.
The Father’s externalising attitude is plainly stated. What he asserts, i.e. “every single” is plainly improbable.
At paragraph 54, he says:
I am not a violent person. I am deeply hurt by these false allegations.
The Father’s criminal record speaks for itself. The evidence about the Father’s previous partner, Ms Y, has already been discussed and is of concern. That the Father asserts that he is “deeply hurt” by these allegations suggests an attitude that he is the victim.
At paragraph 55, he makes this startling admission in the context of the earlier evidence:
The extent of any physical violence was that I got so frustrated with her a couple of times when she yet again wanted to storm off and refused to talk and resolve the problem that I grabbed her by the hand, arm or shoulder as she was trying to get up from sitting next to me and sat her back down so that we could resolve the issue and stop arguing.
It is unclear whether the Father’s clear admission of family violence for the purposes of s.4AB of the Act was confined merely to those events that the Mother alleges, or other events.
At paragraph 71, the Father deposes:
I deny that I have ever been incarcerated.
This is plainly inconsistent with the objective evidence produced by New South Wales Police. The new solicitor appearing for the Father at the interim hearing sought to orally correct the Father’s evidence about whether he had been incarcerated before. The Court declined, indicating that the context of the alleged correction was that it related to a very serious matter and the timing of the correction was after the production of documents to the Court that plainly established that the Father’s evidence was incorrect. The Father had been incarcerated, and he plainly was aware of that at the time that he swore this Affidavit.
In any event, in paragraph 71 he goes on to provide some evidence about his former partner, Ms Y. He deposed to wanting to end the relationship with her, and that something happened when he went to leave:
Ms Y lunged at me and grabbed me by the shirt, causing it to tear. To get her to let go of me, I was pushing her way, include pushing her in the neck. As a result, there was a mark on her neck and Ms Y made a complaint to the police and I was charged and sentenced to a good behaviour bond. I do not recall if there was an AVO.
The COPS entries for this incident have already been discussed in the evidence above. The Father’s evidence at paragraph 71 is inconsistent with the COPS entries. He does not make any reference to the appeal and its lack of success. What is of concern is the Father’s blaming, externalising and minimising. “She” lunged at him. “He” merely responded. “There was a mark on her neck, but that was because he pushed her”, not because he tried to choke her, as the police record indicates.
At paragraph 72, the Father asserts:
Ms Y and I continue to get along.
This is plainly inconsistent with paragraphs 12-16 of the Father’s affidavit of 14 February 2017.
At paragraph 79, he deposes:
Finally, in frustration, with my left hand I grabbed her T-shirt at the shoulder to make her look at me and said, “Why are you doing this?”
Again, this is a clear concession that the Father perpetrated family violence on the Mother, in accordance with section 4AB.
At paragraph 102, he provides more context on his allegation about the Mother trying to jump out of a moving car. It will be recalled that at paragraph 34 of his first Affidavit he described it as the Mother “flung open the car door as we were driving and started trying to jump out of the car”. At paragraph 102, however, of his Affidavit of 21 March 2017, he asserts that:
She suddenly flung open the car door as we were still driving approaching the set of traffic lights and started trying to undo her seatbelt, grab her phone from the console, breaking the latch of the console in the process, and then trying to jump out of the car while it was still moving.
The clear inference to be drawn from paragraph 102 is that the car was approaching a set of traffic lights and thus decelerating, presumably in order to stop. That is completely different to the picture created at paragraph 34 of the first Affidavit. It must be borne in mind that the Father attempted to portray the Mother as suffering from mental health issues in his first affidavit in support of the recovery order. A judicial officer studying the evidence presented in support of an urgent ex parte application such as that of the Father would of necessity, assessed risk based on the assertions made. The assessment of risk as regards paragraph 34 of the first Affidavit would be completely different to the assessment of risk as regards paragraph 102 of the later Affidavit. Paragraph 34 of the first Affidavit is shown, once again, to be a half truth, and a mischievous one at that.
The recovery of the children
This tedious, but necessary, exercise in examining the evidence that the Father advanced in support of his urgent ex parte application for recovery, and then comparing it to his later evidence, is important. An ex parte recovery order should only be made as a last resort, in circumstances where the Court is clearly concerned about a risk of harm to children. Even the Father conceded at paragraph 127 of his Affidavit of 21 March 2017 that:
The recovery order would have been traumatic for the children.
Indeed, it was. The Mother gives evidence about this in her Affidavit of 14 March 2017. Three police officers came to execute the recovery order. She says that they told her (paragraph 136):
You tried to escape and take the children.
Y was clinging to her tightly and crying. He was pale. He was crying as the police took him away. They then went to the school to pick up X. Y was still crying then.
Clearly, the execution of a recovery order is potentially very traumatic for children.
At paragraphs 126 and 127 of the Father’s affidavit he describes the “horrible ordeal” that the children experienced (based on X’s report to him) after they had been taken on 19 January 2017. He refers, for example, to them moving around with total strangers in strange places, including a women’s refuge. He was concerned that the children must have been shocked to be removed from the only home they have ever known.
In the next paragraph, 127, he acknowledges that recovery would also have been traumatic for the children. He goes on to say:
It is not what I would have wanted to do. I do not believe it was in the children’s best interests to be exposed to going through a recovery order, however, it was certainly not in their best interests for them to be removed and taken to three different locations by the Mother within a month, or that they were then living one bedroom of a unit without their own bedrooms, and removed from the only home, family, friends and neighbours they have ever known which were taken away in very traumatic circumstances. The children had been out on that day and bought a puppy, and Ms Drew tore them away from their new pet and dragged the children away with no explanation. It was not in their best interests that they had bought a puppy and then be removed from it. It was not in their best interests to have no contact with their dad.
This paragraph provides an interesting insight into the Father’s thinking and ex post facto justification of his actions. In short, the Father seems to be saying that the trauma of recovery was a necessary evil in order to remedy the “horrible ordeal” of being taken away from their home and their puppy.
The Court plainly disagrees. Three police officers were involved in the recovery of these children in circumstances which, in this Court’s view, did not justify such drastic action. Nowhere in paragraphs 126 or 127 of the Father’s Affidavit of 21 March 2017 does he discuss the alleged risks to the children that he asserted in his first Affidavit and in the Notice of Risk that justified the urgent ex parte drastic order. What happened to the Father’s concerns about the Mother’s mental health? What happened to the Father’s concerns about the Mother’s physical abuse of X? What happened to the Father’s concerns about the children being removed from the country? They are the sort of concerns that might warrant consideration of a recovery order.
Recovery orders are not warranted because children are taken away from their new puppy. A recovery order is not necessarily warranted because children have been taken away from the home with which they are most familiar, and one parent. Quite frankly, it is amazing from the Court’s perspective that once the children were back in the Father’s care as a result of the recovery order, all of his concerns about the Mother that justified, from his perspective, the making of the recovery order, have magically dissipated.
The inference to be drawn is that, in reality, none of the Father’s concerns had any basis. Indeed, the clearest indicator of this was the parenting Orders that he sought in the same application in which he sought a recovery order. Those proposed parenting orders were totally inconsistent with the alleged risks to the children.
Conclusion about Father’s evidence
What this review of the evidence does demonstrate, however, is the inherent unreliability of the Father’s evidence, particularly his denials about family violence. His evidence was not only internally inconsistent within his own Affidavits, but externally inconsistent with the objective evidence from the New South Wales Police. He was less than frank in his disclosure to the Court, particularly at the critical stage of seeking an ex parte recovery order. But it is clear that even as at 21 March 2017, he sought to mislead the Court about whether he had ever been incarcerated, and the nature of his violence to his previous partner. His evidence smacks of blaming, minimisation, and externalising.
The Mother’s evidence
The Mother’s evidence, shortly stated, is that she was primarily responsible for the care of the children, and that from 2015 onwards, the Father became more involved in their care as he was not working. She deposes to the Father’s physical and verbal family violence. She also deposes to what she perceived as the Father’s controlling behaviour. She says that, in effect, she left the Father suddenly and in circumstances where she feared for her safety and that of the children. She annexes to her affidavit of 26 March 2017 evidence of electronic messages sent to the Father, and received from him, during the relevant periods. The Court has already noted that this evidence is inconsistent with the Father’s assertion that he could not communicate with her in the period before the recovery order was executed.
The Court acknowledges that there are aspects of the Mother’s evidence that warrants closer examination at a final hearing. It may be, for example, that her allegations of controlling behaviour have an element of exaggeration to them. She may well be criticised for her lack of communication with the Father after she left with the children. These concerns, however, do not detract from what is the central issue in this case – the family violence allegations against the Father.
Meaningful relationship
The material before the Court suggests that both children enjoy a meaningful relationship with both parents. Whilst both proposals before the Court would result in a change to the amount of time that the children spend with each parent, it does not necessarily follow that the nature of the children’s relationship with their parent, meaningful or otherwise, would change as a result of reduction of time.
Protecting the children from the risk of harm
The Mother’s case is that the children need to be protected from the risk of harm as a result of being subjected to or exposed to family violence. It is not suggested in the Mother’s case that the Father would direct family violence to the children. Rather, the focus of her case is the risk of exposure to family violence. It is an expressed part of the Mother’s case that she fears that family violence would be directed towards her. It is implied in the Mother’s case that the children could be exposed to family violence that the Father perpetrates against other persons. It must be acknowledged, however, that the Mother does not seek supervised time, but the proposals for changeover that she advances provide a measure of protection for herself.
The Father’s case, certainly at the time of the recovery application, was that there was the need to protect the children from the risk of harm from being subjected to, or exposed to, abuse, neglect or family violence derived from the Mother’s physical punishment of X, and her alleged mental health concerns derived from her erratic and argumentative behaviour. The inconsistencies in the Father’s case in this regard have already been noted. The Father’s current proposed interim Orders are, in this Court’s view, quite inconsistent with any asserted risk of harm.
On balance, the evidence before the Court leads it to form a strong impression about the risk of the children being exposed to family violence perpetrated by their Father, consistent with the Mother’s case. This strong impression is formed primarily on the basis of the Father’s own material, as well as the objective material produced by New South Wales Police. It is unnecessary, therefore, to closely consider the Mother’s other allegations about the Father’s family violence as defined in s.4AB. As stated, the strong impression about the Father’s physical violence towards the Mother is an impression formed from his own evidence. Accepting at the moment that this is merely a strong impression, it nonetheless has consequences in terms of managing the risk to these children. The Court believes that the risk is better managed by the children living principally in their mother’s care and spending regular time with their father, but neither for extended periods, nor with great frequency. The risk of family violence is also managed by trying to create a safe environment at changeover. The same evidence justifies the making of the restraining orders sought by the Mother.
Section 60CC(2A) of the Act makes it quite clear that the Court is to give greater weight to the consideration about protecting the children from the risk of harm than it is to the consideration about the benefit of the children having a meaningful relationship with their Father. As it is, both can be achieved in this case, i.e. the Father does not lose his meaningful relationship with the children because of the Court’s concerns about the risk of family violence, though it should be recognised that this result is because of the very realistic proposal advanced by the Mother for the children to continue to spend time with their Father, whom she recognises has a good relationship with the children, provided the violence risk can be managed.
Additional considerations
This is a case where the additional considerations set out in s.60CC(3) do not play a determinative role for the time being. Nonetheless, it can be mentioned that the children’s views play no role in this decision. The children appear to have a good relationship with each of their parents. Both parents have acted precipitously in seeking to deny the other’s time with their children.
A worrying consideration is the likely effect of any changes in the children’s circumstances. These children have been exposed to far too much dramatic change this year. This is inevitably disruptive. But for the Court’s concerns about the risk of family violence, it would have been extremely reluctant to make a further significant change in the children’s lives. The further change contemplated in these reasons – a return of the children to their Mother’s primary care – is necessitated by the Court’s concerns about family violence.
These children now need an extended period of stability in their mother’s care, with their father’s regular involvement in their lives. The Court acknowledges that X will need to change schools, but the geographical issues in this case make it simply impractical for her to remain where she is. The Court recognises that the children will be moved away from the family home and the community that they have known for a good part of their lives, but they will be primarily cared for by the Mother, who has been the most consistent presence in X’s life, and at least as present as the Father in Y’s life.
There are issues of practical difficulty and expense. The Mother does not have a car and is dependent on public transport. The Father lives in far (omitted) Sydney, and the Mother lives in (omitted) Sydney. The Mother proposes the changeovers be facilitated at a railway station where she feels safe. Whilst there are challenging issues of practical difficulty on any scenario, the Mother’s proposal for changeover at (omitted) Railway Station should be manageable for both parents and will ensure that the children get to spend time with their Father.
The Court accepts that at a final hearing the capacity of each parent to provide for the needs of the children will need to be subjected to greater scrutiny. Whilst the focus of the present reasons has been on the Father’s violence, the Court has no doubt that aspects of the Mother’s behaviour will be subjected to critical scrutiny. None of the matters asserted in the Father’s case, however, have any bearing on interim issues. Likewise, there are issues about parental attitudes that need further exploration.
Other matters
The material before the Court suggests that an order appointing an Independent Children’s Lawyer is appropriate. An order to that effect will be made.
Having regard to the material before the Court, and for the reasons set out above, the Court believes that, for the time being, the Orders proposed by the Mother are in the best interests of the children. There is already an existing order for equal shared parental responsibility, and in the circumstances it is not appropriate to depart from the same.
Whilst the Court is, therefore, obliged to consider equal time, or substantial and significant time, the matters set out above explain why it is not in the children’s best interests for either equal time, or substantial and significant time to apply. The Court records that it did consider the possibility of starting the Father’s time on Friday afternoon after X’s school ends, and ending the time on Monday morning when she is to return to school. The difficulty, of course, is that even this changeover arrangement becomes more complex and, indeed, more problematic because Y does not go to school. The Mother is concerned about safe changeovers. The Court is concerned about changeovers that do not expose the children to the risk of conflict or family violence between the parents. Whilst it is not entirely satisfactory, the Mother’s proposal seems adequate, though the Court signals that once the Independent Children’s Lawyer becomes involved in this case, it may well be open to extending time, provided changeovers can be achieved satisfactorily. Further consideration will also need to be given to school holidays and special occasions.
The Independent Children’s Lawyer will also need to give consideration as to what sort of expert evidence should be obtained in this case.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 13 April 2017
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