Fellows and Fellows

[2012] FamCA 858

FAMILY COURT OF AUSTRALIA

Fellows & Fellows [2012] FamCA 858

FAMILY LAW – CHILDREN – Recovery Order - Where the Father is applying for a recovery Order - Where Orders were made on 4 September 2012 for the Mother's time with the child to be supervised - Where the Mother has retained the child - Where the maternal grandparent supervisors have withdrawn their consent to supervising the Mother's time with the child - Where the Mother alleges she has child protection concerns with the child being in the Father's care

Family Law Act 1975 (Cth)

APPLICANT: Mr Fellows

RESPONDENT: Ms Fellows

INDEPENDENT CHILDREN’S LAWYER: Ms K Bint

FILE NUMBER: BRC 4262 of 2012

DATE DELIVERED: 5 October 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 5 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Family Lawyers & Mediation Services

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

1. The time for the hearing of this Application be abridged.

2. Should the Respondent Mother, Ms Fellows, not return the child M, born …2008, (“the child”) to the Applicant Father, Mr Fellows, by 4.30 pm on 5 October 2012, a Recovery Order shall issue forthwith addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

3. Such persons are authorised and directed to find and recover the child, M (a male), born …2008, and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found.

4. All police Officers and federal Agents are authorised to proceed on a facsimile copy of this Order.

5. The child is to be delivered to the Applicant Father, Mr  Fellows,  at T Street, B suburb in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and the Applicant.

6. The Recovery Order remains in force for a period of six (6) months.

7. The Order of Federal Magistrate Howard dated 4 September 2012 be varied such that any time that the child spends with the Respondent Mother and/or the maternal grandmother be suspended until further Order of the Court.

8. The Respondent Mother, her servants or agents, be and are hereby restrained from again removing or causing the removal of the child from the care of the Applicant Father contrary to the Order dated 4 September 2012, and upon any breach of this Order, that person may be arrested without a warrant.

9. The parties’ costs of and incidental to the Application in a Case filed 5 October 2012 be reserved to the trial Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fellows & Fellows 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 BRISBANE

FILE NUMBER: BRC 4262 of 2012

Mr Fellows

Applicant

And

Ms Fellows

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for a recovery Order within the meaning of s 67Q of the Family Law Act 1975 (Cth) (“the Act”) with respect to the child, M, born in 2008.

2. The application is made by the child’s father, Mr Fellows (“the Father”) and was filed urgently today and the matter was listed for an urgent hearing today. In the event, the Respondent Mother appeared by her solicitor, Mr Grainger, on the application, and has filed an affidavit.

3. The interests of the child are independently represented in the proceedings by an Independent Children’s Lawyer appointed for that purpose, and Ms Bint, the Independent Children’s Lawyer, also appeared at the hearing.

4. The Independent Children’s Lawyer supports the Father’s application for the making of Orders as set out in his application filed today.

5. By way of brief background, there was an interim hearing on 4 September 2012, only about a month ago, before Federal Magistrate Howard. The Federal Magistrate’s Orders, and his reasons for judgment, were read before me. The Federal Magistrate, apart from ordering the parents to have equal shared parental responsibility for the child, otherwise made orders for the child to live with his father, to spend time with the maternal grandmother, Ms A, and for the Mother to spend time with the child in those periods when the child was with the maternal grandmother, with such time to be supervised either by the maternal grandmother or the maternal step-grandfather.

6. Whilst the hearing before the Federal Magistrate on 4 September 2012 was an interim hearing, it is apparent from the Federal Magistrate’s reasons for judgment that the hearing extended a little beyond what is the usual case with interim hearings done solely on the papers. It appears clear from the reasons that there was cross-examination of, inter alia, the Mother, and there is reference in those reasons to earlier hearings when the Mother was cross-examined. Without going into the detail of those reasons, it is clear that the Federal Magistrate, having had the benefit not only of cross-examination before him, but also reference to significant subpoenaed material that was before him, concluded or expressed concerns as to the presentation of the Mother and concerns as to her evidence before the Court. Indeed, the Federal Magistrate expressed a concern that the Mother had lied to the Court and that he was concerned, “That the Mother will basically say what she thinks the Court needs to hear or ought hear,” which I interpret as a conclusion to the effect that the Mother will advance evidence to advance her case without particular regard to the veracity of such evidence.

7. The affidavit material in support of this application confirms that the child was to spend time with his maternal grandmother pursuant to the Orders of the Federal Magistrate from 4.00 pm on Thursday 27 September 2012 until 5.00 pm on Saturday 29 September 2012, during which time the Respondent Mother was able to spend time with the child when supervised by either of the maternal grandmother or the maternal step-grandfather.

8. However, it appears clear from the evidence that on Friday 28 September 2012, the Respondent Mother determined to leave the home of the maternal grandmother, taking the child with her, and has since refused to return the child to reside with the Father.

9. In the affidavit e-filed by the Mother, sworn, I assume, today, even though the coversheet of the affidavit records a swearing date of 14 October 2012, whilst the durat section of the affidavit records a swearing date of 12 September 2012, the Mother advances assertions said to support the conclusion that the child is at physical risk whilst in his father’s care. Specifically, reference is made in paragraph 17 to a transcript of a conversation said to have occurred on Sunday 30 September 2012 between three year old the child and his mother, involving a questioning and answer session with the child.

10. The transcript is brief, but all that need be observed of it at this stage, is that there were a number of leading question posed by the Mother to the child, and the answers forthcoming from the child need to be considered in that light. Mr Grainger tells me from the bar table that there is an audio recording of that exchange. Apart from that, there are assertions in the affidavit about the child’s behaviours, leading to the Mother’s concerns, she says, with the child’s care when with the Father.

11. The Orders of 4 September 2012, made by Federal Magistrate Howard, included a request for intervention pursuant to s 91B of the Act by the Department, and Mr Grainger informs me from the bar table that, on his instructions, his client made a notification to the Department last week.

12. Exhibit 1 in the proceedings is what seems to be the most recent advice from the Department dated 14 September 2012 as to involvement of the Department.

13. Arrangements have been made by the Independent Children’s Lawyer for a Family Report to be undertaken this month, and the matter is due to be returned to Court, on a transfer to this Court, on 20 November 2012.

14. Plainly enough, on an urgently listed application such as this, where there are allegations and counter-allegations made on this very day that have not been answered and cannot realistically be tested, there are significant limitations to what this Court can do, albeit the obligation to have regard to the child’s best interests in exercising its power to make a recovery Order.

15. The Independent Children’s Lawyer also submits that a significant feature about at least the basis for some concern about the Mother and hence the imposition of supervision of her time with the child is the potential for her to continue to use drugs, and it is clear from the reasons of the Federal Magistrate that that, and other things, had concerned him as to the Mother’s capacity to appropriately parent the child. These matters are untested in the sense that the Mother denies that she continues to use drugs, and her affidavit contains in an annexure a referral for a drug test she undertook on 19 September 2012. However the fact is that the Independent Children’s Lawyer can point to a clear drug test from the Father as the result of a test on 17 September 2012, yet the annexure to the Mother’s affidavit, which confirms that it would seem that she underwent a test on 19 September, does not include any result in respect of that test.

16. It seems to me that Federal Magistrate Howard was in a far better position than I am today in terms of assessing the best interest considerations under the Act in formulating the Orders the Federal Magistrate made on 4 September 2012 and I have already referred to the feature that the Federal Magistrate had the benefit of reference to subpoenaed material and cross-examination.

17. I am advised on behalf of the Applicant that the supervisors contemplated by the 4 September 2012 Order have withdrawn their consent to continuing to supervise time by the Mother, which is perhaps unsurprising given the events earlier discussed in terms of the Mother’s removal of the child from the maternal grandmother’s care without any authority of the Court to so do. Unfortunately, the outcome would seem to be, in circumstances where I am not persuaded that it is in the child’s best interest to remove the requirement for supervision, that the only realistic supervision in the circumstances would be a contact centre, and it is unlikely that arrangements could be made for a contact centre to be available between now and the further hearing of this matter on 30 November 2012.

18. It is in those circumstances that the Orders sought by the Applicant include an Order that the Order of 4 September 2012 be varied to the extent that Orders for time by the Mother being supervised by the maternal grandmother be suspended until further Order of the Court. It would seem axiomatic in circumstances where the maternal grandmother has withdrawn her consent to continue to supervise that such a variation necessarily follows absent a suitable alternative, and I have already noted that, short of a contact centre, there would not appear to be any other realistic option between now and 20 November 2012.

19. Section 67U of the Act provides that in proceedings for a recovery Order, the Court may, subject to s 67B, make such recovery Order as it thinks proper. Section 67B requires the Court, in deciding whether to make a recovery Order in relation to a child to have regard to the best interests of the child as a paramount consideration.

20. Fortified by the nature of the hearing before Federal Magistrate Howard on 4 September 2012 and by his Orders, further by the fact that the child’s interests are represented by an Independent Children’s Lawyer who supports the making of the Orders sought, and in the knowledge that there is to be a Family Report and a further determination of the matter on 20 November 2012, I am satisfied that it is in the child’s best interests for the Orders sought to be made as per the application, save and except that there would not seem to be any utility in paragraph 8 of the Orders given that the Mother actually appeared at the hearing and plainly has knowledge of the application and the materials in support, and save also for paragraph 9, which refers to costs. I propose to reserve the costs of this application and hearing.

21. By 20 November 2012, there may be further or better evidence as to the Mother’s claims or at least her justification for the actions she has taken in apparent contravention it seems of solemn Orders of a Court.

22. I therefore make Orders in terms of the application made by the Father save only for the modifications I have indicated.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 October 2012.

Associate:

Date:  10 October 2012