Findlay & Benson
[2022] FedCFamC2F 154
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Findlay & Benson [2022] FedCFamC2F 154
File number: AYC 104 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 February 2022 Catchwords: FAMILY LAW – interim parenting – application for recovery order – where siblings are separated – risk to welfare of children – best interests of children – where applicant mother discontinues – recovery order made. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CB, 60CC. Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 8 December 2021 Place: Melbourne The Applicant: No Appearance The First Respondent: No Appearance The Second Respondent: Appeared In Person The Third Respondent: Appeared In Person Counsel for the Independent Children's Lawyer: Mr C Sperling Solicitor for the Independent Children's Lawyer: Walkden Law and Mediation ORDERS
AYC 104 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FINDLAY
ApplicantAND: MR BENSON
First RespondentMR ROSS
Second RespondentMS CARR
Third RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 DECEMBER 2021
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 16 December 2021.
THE COURT ORDERS THAT:
1.The Second Respondent Maternal Uncle, Mr Ross ('the Maternal Uncle') have sole parental responsibility for the children:
(a)W born in 2006;
(b)X born in 2007;
(c)Y born in 2009; and
(d)Z born in 2011.
('the children')
2.The children live with the Maternal Uncle.
3.Pursuant to section 67Q of the Family Law Act 1975 (Cth) a recovery order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born in 2007 and Z born in 2011 ('the children'); and
(b)to deliver the said children to the Maternal Uncle, Mr Ross at such place as the Maternal Uncle, Mr Ross and the person effecting such recovery agree to be appropriate;
(c)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 said children may be found;
4.The Applicant Mother, Ms Findlay ('the Mother') and the First Respondent Father, Mr Benson ('the Father')
Mr Ross ('the Father')and their servants and agents are pending further order restrained from removing, or causing the removal of, any of the children from the Maternal Uncle, Mr Ross.5.If the Applicant Mother, Ms Findlay again removes or takes possession of the children she may be arrested without a warrant.
6.The Mother facilitate the transition process by arranging for the clothes and other personal belongings of the children X born in 2007 and Z born in 2011 to forthwith be made available to the Maternal Uncle.
7.The children spend no time with the Father.
8.The children spend time with the Third Respondent, Ms Carr ('Ms Carr') in accordance with their wishes and as agreed in writing between the Maternal Uncle and Ms Carr, and for this purpose the Maternal Uncle and Ms Carr shall communicate these arrangements via text message.
9.In the event of such time occurring pursuant to order 8 herein, Ms Carr be and is restrained from discussing in any way of the Father's criminal proceedings including guilt or innocence of the charges and why he is in gaol.
10.That within a period of 14 days the Mother shall provide a copy of each of the child's birth certificate to the maternal uncle Mr Ross by either of the following:
(a)by mail as follows to PO Box … Town B, NSW
(b)by emailing a copy as follows, to …@hotmail.com or
(c)by delivering a copy to the home of the maternal uncle at C Street, Town B, NSW
11.That these orders act as authority for the maternal uncle Mr Ross to be provide with or obtain a copy of each child's birth certificate (namely each of the children):
(a)W born in 2006;
(b)X born in 2007;
(c)Y born in 2009; and
(d)Z born in 2011.
From NSW Registry of Births, Deaths and Marriages
12.Each party be and is be restrained from :
(a)speaking negatively about another party or their family member in the presence or hearing of the children or each of them; and
(b)consuming illicit substances in the presence or 24 hours prior to spending time with the children.
13.That these orders act as authority for the Maternal Uncle, Mr Ross to obtain a Medicare card for each of the children.
14.That the Maternal Uncle, Mr Ross and the Mother keep the other updated with a contact telephone number for each other, and for the children.
15.The parties have liberty to apply on short notice to the associate to Judge O'Shannessy in relation to the implementation of the recovery order.
16.The matter be otherwise adjourned for Interim Defended Hearing in the February 2022 Albury Circuit sittings of the Federal Circuit and Family Court of Australia on a date and time to be advised.
17.By 4.00pm on 7 February 2022 the parties file and serve any further material upon which they seek to rely on the adjourned date.
AND THE COURT NOTES THAT:
A.Order 12 herein was sought without admission by any party.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Findlay & Benson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
The matter concerns the parenting arrangements for the four children; W who is aged 15 (‘W’), X who is aged 14 (‘X’), Y who is aged 13 (‘Y’) and Z who is aged 10 (‘Z’) and collectively referred to herein as ‘the children’. The applicant mother is Ms Findlay (‘the Mother’), the first respondent father is Mr Benson (‘the Father’), the second respondent maternal uncle is Mr Ross (‘the Maternal Uncle’), the third respondent, Ms Carr (‘Ms Carr’), is the Father’s partner. The fifth party to the proceedings is the Independent Children’s Lawyer (‘the ICL’).
This matter came before me listed as a final hearing on 8 December 2021 in the Albury circuit sittings of this court heard electronically via Microsoft Teams. The matter was listed as one of seven final hearings that day, as is standard in a circuit listing. When the matter was called on, counsel for the ICL informed me that no appearance was expected by the Mother. Or by the Father who has been incarcerated since May 2020. The Maternal Uncle and Ms Carr appeared in person. Ms Carr told me she thought the Father was applying for bail, pending an appeal, in February 2022 and that otherwise he was serving a sentence of 12 years. Blomfield Legal remained as the solicitors on the record for the Father. There was no appearance by Blomfield Legal or explanation about that and no appearance by the Father. It is a serious matter to have the privilege of being a solicitor on the record for a party to proceedings in the court and then not turn up. Due to the COVID-19 pandemic the hearing was heard electronically by Microsoft Teams.
My Associate called the office of Blomfield Legal and an appearance was made by a law graduate who was waiting a date for her admission ceremony who told me, in substance, that although the matter was not her file she understood that the Father would have been provided notice of the hearing but that Blomfield Legal could not assist him in the matter because he would not get a grant of legal aid because of the merits test. Despite requests that the principal, Mr Blomfield contact me immediately, he did not do so until the following Friday, when he apologised for his absence.
I was told by Mr Sperling, counsel for the ICL, that the Father had been convicted of a number of serious sexual assaults in relation to minor children and that there was an appeal pending in relation to those convictions and those circumstances appeared common ground among those appearing that day. I was also told by counsel for the ICL that the orders made on 18 May 2021 were made with the Father being represented and the Mother appeared in person, but electronically. Reading those orders confirms this. Those orders adjourned the proceedings to this sitting for a three day hearing. Notation A to those orders records that the Mother and the Second Respondent were advised that they must attend the hearing on the next occasion.
I made orders that day, including a recovery order for X and Z and reserved my reasons. These are those reasons. A transcript of the proceedings that day has been placed on the court file.
Proceedings seeking orders that the four children live with her. In substance the real respondent is the Maternal Uncle with whom W and Y have lived since May 2020. The Maternal Uncle sought that the other two children who lived with the Mother, X and Z, live with him and W and Y and he sought a recovery order to put that into effect.
The ICL provided a summary of the children’s current living arrangements. The ICL informed me that W and Y have lived with the Maternal Uncle since May 2020 when they placed in his care with the assistance of New South Wales Police and the Department of Communities and Justice. The ICL informed me that X and Z were living with the Mother and that the Maternal was seeking a recovery order for X and Z to live in his care pending further order.
I had the benefit of a recent family report dated 8 November 2021 and a previous section 11F child inclusive conference memorandum following a conference on 7 July 2020. However the Mother, with whom X and Z lived, although interviewed for the family report did not make X and Z available for either the family report or the section 11F conference and the ICL had been unable to speak to X and Z.
Exhibit C1 8.12.2021 (Court’s Exhibit) is the 24 November 2021 email from my Associate (the equivalent to a practice manager or executive assistant) to all of the parties (and where represented their solicitors) providing further notice of the hearing and details of the “Microsoft Teams” link for the parties and practitioners to join for the electronic hearing. Exhibit C2 8.12.2021 is a response to C1 received on 24 November 2021 shortly after C1 was sent headed, “Ms Findlay Court Hearing 8 December”, and the response was:
Just to let you know, I have pulled out.
I drew the inference (and I find) that the C2 reply was from the Mother. Undaunted by that communication, that day my Associate sent a further email to the Mother (cc’d to the other parties or where represented) their solicitors on the record, as follows:
Thank you for your email.
The matter will remained listed before Judge O’Shannessy on 8 December 2021.
Please see attached link for assistance regarding discontinuance…
I raised with counsel for the ICL the issue of the Mothers notice of the proceedings and following discussion and submissions ensued
HIS HONOUR: …Now, can you assist me, Mr Sperling, to ensure that the mother has notice of these proceedings? How can I be satisfied of that?
MR SPERLING: You can be satisfied by way of the fact that the mother does ..... and involved in the proceedings that was before the court in November 2020, that she was aware of the proceedings by way of appealing, by way of video conference on 18 May 2021 when the matter was specifically set down for hearing and adjourned for the final hearing then this week. And, your Honour, if your Honour wasn’t satisfied or had some concerns about that, the exhibit that your Honour has now made about the mother’s recent ceasing to be disengaged in these proceedings that your Honour has marked in this exhibit would be another matter that your Honour would be aware of that would give your Honour comfort that the mother would be aware of these proceedings and has elected not to proceed.
HIS HONOUR: Yes. Thank you.
MR SPERLING: That combined with the issues, the fact that she actually did speak to the family report writer for the purposes of the report, albeit on one occasion, would also give you (comfort).
HIS HONOUR: And that was in September? 28 September.
MR SPERLING: 28 September, your Honour.
(see line 14-37 of p. 33 of the transcript dated 8 December 2021).
I found that the Mother had notice and knowledge of the pending hearing and had chosen not to participate. I found that the Father, whether or not he was aware of the hearing being on that day, had at some point previously had notice and knowledge of the fact of the proceedings and at one time knowledge of a hearing being listed in the December circuit list of the court.
Unusually towards the very end of the hearing and submissions Ms Carr was able to make telephone contact with the Father, who remained in prison, and appeared to have permission from the prison authorities to speak to Ms Carr by telephone. Ms Carr asked me to use that facility to have the Father address me at that point. The following exchange occurred:
MS CARR: I’ve actually got Mr Benson on the phone at the moment.
HIS HONOUR: Right.
MS CARR: Would you like to have a quick word for him? Mr Benson, quickly.
HIS HONOUR: Yes. Well, I just want to make sure that that’s lawful and I’m not breaching any prison regulations so
MS CARR: Mr Benson, what would you like happen to the boys?
HIS HONOUR: Ms Carr, just hang on and I will
MS CARR: Yes.
HIS HONOUR: Just hang on for a minute. Mr Sperling, it appears to me that I should hear from Mr Benson as party to the proceedings and we have the unfortunate glitch with his lawyer (and) appears to me that in reality he’s a litigant in person. What do you say about me – do you have or know of any regulation or anything that we would be inadvertently breaching?
MR SPERLING: I don’t, your Honour. I’m concerned about the potential problem that your Honour may have from somebody who’s allegedly on one phone to another so I have real concerns about that part about it and I don’t want him to be prejudiced in any way or for that to be a problem with his conditions.
HIS HONOUR: Yes. In other words, causing…
…
HIS HONOUR: …inadvertently causing trouble for Mr Benson by – he gets permission in the jail to speak to his partner who then speaks to someone else and I know that
MR SPERLING: Yes.
HIS HONOUR: there are prison regulations once upon a time that were quite tightly, and for appropriate reasons, control that so that the prison authorities know who is being spoken to at the other end of the telephone.
MS CARR: Yes. I understand.
HIS HONOUR: Yes. Ms Carr, it appears to me that Mr Benson won’t have – he’s got permission to speak to you on the telephone, I presume. Is that fair?
MS CARR: Yes. He’s just – yes, he just has to get permission off – or for Mr Ross to accept his number and then he can actually speak to the kids at a certain time on a certain day
HIS HONOUR: No. But I mean today the prison authorities don’t
MS CARR: On – no, today. Well, yes. Yes, that – I understand that. Yes.
HIS HONOUR: Today he doesn’t have permission from the prison authorities to speak to me or give evidence.
MS CARR: Yes. Yes, I understand that. Yes.
HIS HONOUR: And I don’t want to get him in strife.
MS CARR: And he understands that .....
HIS HONOUR: Yes. All right.
MS CARR: Yes.
HIS HONOUR: All right. Thank you. Mr – anything further, Ms Carr?
MS CARR: No thanks.
(see: line 21 of p. 38 to line 41 of page 39 of the transcript dated 8 December 2021).
In those circumstances, balancing the assistance the Father’s submissions might have and the proper orderly conduct of the hearing and the Father’s circumstances of limited authority from the prison authorities to communicate by telephone, I declined to have the Father address me.
The child inclusive conference took place on 7 July 2020, that is shortly after W and Y had been placed in the care of the Maternal Uncle. The Maternal Uncle made W and Y available to be interviewed by the family consultant. The Mother did not participate and did not make X and Z available for interview by the family consultant.
The family consultant stated what were regarded by her at that time as the issues for the children at [42-47] of the 11F memorandum.
42.The children have suffered many adverse experiences including alleged neglect, parental mental illness, parental substance abuse, parental aggression, instability, loss and serious disruptions to their relationships.
43.Separated siblings. W and Y and X and Z have not spent time together since July 2018.
44.W and Y are not presently spending time with D, their younger paternal half sibling, Mr Benson’s and Ms Carr’s child, with whom they have close relationships.
45.The allegation that W and Y had been subject to severe neglect and parental mental illness and substance abuse when in the mother’s care and that this may currently be the case for X and Z.
46.The allegation that the father had sexually abused the children’s older maternal half-sister/s when they were children and the impacts of such on the children.
47.The father’s sudden imprisonment and the impacts on W and Y including their sudden change in living arrangements.
The family consultant (who had undertaken the section 11F conference) prepared a family report as had been ordered on 18 May 2021. Interviews were conducted on 28 September 2021 as follows:
Interviews conducted, on 28/9/2021, as follows:
•Interview with Ms Findlay (Applicant mother) by telephone; MS Teams video was not viable due to poor reception in her locality
•Interview with Mr Ross (Second Respondent maternal uncle) initially by MS Teams video and subsequently via telephone due to poor reception in his locality
•Interview with Ms Carr (Third Respondent, the children’s father’s partner) via MS Teams video.
Interviews conducted, on 29/9/2021, as follows:
•Ms Teams video interview with W (subject child)
•Ms Teams video interview with Y (subject child)
•Telephone call to Mr Walkden, the ICL
At the time of the family report interviews the Maternal Uncle had not filed any material.
The complex history of the extended family of these children is recited in the family report. Relevant history includes the following:
9.Ms Findlay has 3 other children from a prior relationship, Ms E (born in 2001), aged 20 years, Ms F (born in 2002), aged 19 years, and Mr G (born in 2003) aged almost 18 years. During their latter adolescence, Ms E and Ms F resided with Mr Ross and Ms H with the subpoenaed material indicating that Ms F’s placement was assessed and supported by NSW Child Protection. Ms E and Ms F now live independently in the Town J region and visit Mr Ross and spend time with their brothers’ in his care. They do not have contact or relationships with Ms Findlay. Mr G’s current situation is not known to the writer.
10.Mr Benson has been convicted of sexually abusing Ms F and Ms E when they were children when he was their step-father when in a relationship with Ms Findlay. At the assessment, Ms Carr said that Mr Benson had been sentenced to 12 years jail following a jury trial. Mr Ross said that he was aware that Mr Benson had been convicted. Ms Carr advised that Mr Benson intended to appeal his sentence, however, if successful, any appeal would not be heard for at least 12 months.
11.Ms Carr reported that she and Mr Benson started living together in 2014 and they continue to be in a relationship. They have one child together, D, born in 2014, aged 7 years, who lives with Ms Carr. Ms Carr has 7 children from a prior relationship, most of whom are adults, albeit one child, now aged 11 years, K, reportedly was placed into the care of his paternal grandparents during his infancy by the Department of Communities and Justice (DCJ). Ms Carr indicated that since proceedings commenced, she had moved to Town L, NSW, from Town J where she previously resided with Mr Benson. She is presently residing with a female friend and intends to obtain independent accommodation, at a future stage.
…
16.As stated, W and Y resided with Mr Benson and Ms Carr from July 2018 until May 2020. The day that Mr Benson was arrested and charged with sexually abusing Ms Findlay’s daughters, DCJ removed W and Y placed them with Mr Ross, where they continue to reside.
Having reviewed all available information the family report writer and having interviewed two of the children, the Mother, Ms Carr and the Maternal Uncle had many concerns about the welfare of the children X and Z who remained in the Mother’s care at the time of interview. Those concerns are apparent from the following parts of the family report;
Child Safety and Wellbeing
28.There has been a number of significant harm reports and child protection involvement in NSW and Victoria in relation to Ms Findlay’s capacity to provide a safe and secure environment for her children. The primary concerns appear to have been related to untreated mental health, family violence and parental drug use. Concerns existed that the children had been exposed to serious neglect, environmental issues and the mother’s paranoid behaviours and the adverse impacts on the children. Mr Ross alleged that he understood that DCJ previously had an “open” file on Ms Findlay for some time and that they intended to remove X and Z from her care, however, she absconded with them from NSW to Victoria.
29.During her interview, Ms Findlay indicated that X and Z had not been enrolled into a school or home schooling program and that she had no intention of doing so. She reported that she believed they benefitted most from learning life skills which can be taught at home. Mr Ross said that Ms Findlay had a long history of not ensuring the children attend school. Following the assessment, the writer made a report to DCJ in regards to concerns about X and Z in Ms Findlay’s care including that they are not enrolled into a school or receiving a formal education program.
Drugs and Alcohol
30.Ms Findlay said that, in the past, for a few months, she used illicit substances, including “Ice”, but had not used drugs for a very lengthy period. She stated that she barely drinks alcohol.
…
Mental Health
32.Ms Findlay reported that she had not been diagnosed with a mental illness. She said that while it was the case that she was hospitalised in a mental health unit in July 2018 that was a drug related mental health episode…
…
Ms Findlay, applicant mother
36.Ms Findlay was interviewed by telephone and she reported that due to the poor network coverage she had needed to move to a location away from where she was residing and was, in fact, standing in a paddock. At times, Ms Findlay spoke coherently and, at other times, she provided information that was difficult to ascertain whether it pertained to the truth and real events, or whether she was potentially experiencing paranoid delusions.
37.Ms Findlay commented that she had needed to leave her home in Victoria and move to the maternal grandparents’ property for safety reasons and that the detective involved was meant to organise a house for her in NSW but had not. For that reason, she found herself in a difficult situation of being homeless and needing to camp at the maternal grandparents’ property. When asked, Ms Findlay indicated that she had not applied for government or emergency housing assistance in Town J. She advised that she could not provide the details about why she needed to leave Victoria for her safety and that was confidential and that the writer would need to speak directly to the detective about that. However, Ms Findlay later commented that she had “nearly been shot” by person/s unknown, however, that she knows “higher up people” and that the Judge would be made aware of her situation.
…
41.As stated, Ms Findlay said that she had not enrolled the boys into school since she moved back to the Town J region and had no intention of doing so. She said that X would not engage in home learning and that it was too much trouble albeit they were going to school when they lived in Victoria, which she said was Town M Primary School. Ms Findlay said that she had been buying books for them. From Ms Findlay’s perspective, the children learn more from being at home and experiencing things than attending school. She said that they benefit most from learning life skills, such as, how to fix a car and working on a property. She indicated that she did not have any schooling and the maternal grandmother did not believe in that. She appeared to state that she did not believe that neither X nor Z could read or write.
The family report writer looked at the issue of how the Maternal Uncle would care for and cope with so many children and the Maternal Uncle had reported as follows:
Mr Ross, third respondent maternal uncle
56.Mr Ross presented as friendly and easy going. He expressed a clear desire for W and Y to continue to reside with him and he said that he knows that they want to continue to live with him. In Mr Ross’ view, it would be for the best that X and Z be removed from Ms Findlay’s care and placed with him and for the siblings to live together. Mr Ross said that with Ms H’s good support he would ensure that the children are appropriately cared for and that their needs are met. He reported that if X and Z were to live with him that, as well as being with their brothers, they would live with their cousins of similar ages and they would have good access to their older maternal half siblings who visit at their home. He advised that the night prior to his interview, W and Y had stayed the night with their sister at her home in Town J. In addition, they would also have good access to the maternal grandparents and he had permitted W and Y to spend time with their paternal family members, which would also be the case for X and Z. Mr Ross further reported that his other sisters have “lots of children” and they with their children often visit at his home. From Mr Ross’ perspective, X and Z would comfortably adjust to being in his care and a key reason for that is that they would be living with and surrounded by their significant family members, and be given appropriate care.
57.Mr Ross acknowledged that having another 2 children living with him and Ms H would mean that more children would live under the same roof and need to be cared for. Mr Ross advised that a “granny flat” had almost been finished and that would provide 2 extra bedrooms that would be used for the older children. He said that he and Ms H would always “take on” X and Z and that they are very family orientated. He stated that was similarly the case when they cared for Ms Findlay’s older daughters who have since moved out and live independently. He acknowledged that with so many children to care for, they would not get the “full on” attention that would be the case with fewer children but “we’ll care for them”.
For the purpose of this hearing that evidence is unchallenged and I accept that evidence.
Y and W were reported as having strong views about living with the Maternal Uncle and their relationships with X and Z. As to Y, the family report writer observed his wishes as follows:
CHILDREN AND THEIR RELATIONSHIPS
Y, aged 13 years 7 months
66.Y was interviewed by MS Teams. He presented as quiet and somewhat shy, however, he responded to questions clearly. Y recalled having met with the writer previously, also by MS Teams. Y reported that he is in year 6 and school is going “very well” and he has friends. His interests include “running” and he likes to play computer games with his cousins and he said “we are very close”.
67.When asked about his present living arrangements, Y said “it’s going good”. He explained that what is “good” about it is “the food” and “my cousins”. He added that the children “help out about the house” for instance, they might do the dishes or fold clothes or hang them up.
68.In regards to X and Z, Y said “we don’t see them” and that is because “they’re with my Mum, I think they’re travelling”. He said that the last time he saw them was at their “Pops”. Y said that it “was fun” seeing X and Z and they played a ball game together. He said that X and Z seemed happy “to see us”.
69.When asked if he had a preferred living arrangement, Y indicated that he wished to remain living with Mr Ross and Ms H, “I’d rather stay here”. He said that the reason for that is they spend “heaps of money” on them while Ms Findlay would spend her money “on cigarettes and that”. He added “it’s fun living here”.
70.Y said that he would like to see X and Z more, if he could. He would not wish to spend time with Ms Findlay at this stage and would be worried about that. Y mentioned he is not presently spending time with D and, when asked, he appeared to speak reticently about that and Ms Carr and Mr Benson and he mentioned that his father was in jail.
Of W the family report writer observed as follows:
W, aged 15 years 4 months
71.W presented as very reticent and reluctant to be interviewed and answered with “I don’t know” to a number of questions, with the interview therefore being kept quite brief. … He said that he has plenty of friends at school which is good and otherwise school it is okay. His interests including going “outside” and playing video games.
72.W said about living with Mr Ross and Ms H, “it’s going good”. However, he would prefer that they had more space. He reported that X and Z appeared “happy enough” when they recently saw them. W said he did not know if it would be a good thing for X and Z to live at Mr Ross’ home due to them all being “packed in” currently. W stressed, however, that the Court needs to “make sure they don’t live with Mum”. That is because he is sure that they would not be getting proper care. He commented that he would not wish to spend time with Ms Findlay at this stage.
The conclusions of the family report writer included the following:
77.In addition, potentially as a function of Ms Findlay’s psychiatric ill-health and perhaps illicit substance use, X and Z have allegedly been subjected to a number of adverse experiences throughout their lives, including; parental mental ill-health and paranoid comments and behaviours, neglect, lack of basic education opportunities, family violence, potentially a transient lifestyle and inadequate accommodation and separation from significant family members. A child’s exposure to such has the potential to significantly and adversely affect a child’s emotional and psychological functioning, wellbeing and development.
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79.In the writer’s opinion, based on the information available, it is respectfully recommended that this matter be given priority by the Court and that consideration be given to X and Z being placed into Mr Ross care, during the interim and over the longer term. It is feasible that the matter would not be reached at the final defended hearing and if not X and Z may be at risk of harm, during the interim.
80.While the writer was not given an opportunity by Ms Findlay to interview X or Z, and their views are therefore not known, that is not considered a limitation in this assessment. If there arose a conflict between the welfare and safety of X and Z and their time with Ms Findlay, then safety would be considered more important, separate to their potential views. They both may be particularly vulnerable due to their situation.
Child protection authorities in Victoria and New South Wales have from time to time been concerned about the children’s welfare. Counsel for the ICL described the situation as follows:
MR SPERLING: The independent children’s lawyer’s inquiries is that they don’t have an active file and aren’t seeking it because they understand that the mother and those children, X and Z, are believed to be in New South Wales. The New South Wales relevant department, the independent children’s lawyer understands that they have an active file but have been unable to ascertain where the children are. And of course they’re unable to recover the children if they are in Victoria with the mother. And your Honour will be aware that there has been some issues about whether the children have been in Victoria or New South Wales and there has been in the family report an indication at paragraph 7 that the mother and children are living in a campervan. That provides, of course, the mobility to be able to cross border for the mother subject to COVID aspects.
(see: line 32-42 of p. 20 of the transcript dated 8 December 2021).
The ICL supported that X and Z be reunited with W and Y and live with the Maternal Uncle but also supported the drastic step of a recovery order for those children. The ICL pointed to subpoenaed records that showed the Mother as having had in the past (2018) serious mental ill health including paranoid delusions and tended and referred to records being exhibit ICL2 8.12.2021. The ICL submitted that the Mother’s statements to the family report writer were consistent with reports of her past poor mental health including delusional thinking.
The ICL submitted that the failure by the Mother to have X and Z attend school was concerning. The ICL submitted that the failure by the Mother to make X and Z available for the family report was concerning. I accept those submissions.
The ICL was concerned that the children X and Z may well be living in squalor and neglect when living with the Mother.
I raised with counsel for the ICL my concern about the impact upon X and Z of the execution of the recovery order as sought by the maternal uncle and the ICL and the following discussion and submissions occurred:
HIS HONOUR: Could you just address me, Mr Sperling, on the issue of, as I see it, the – one issue is whether there should be what I will call an ordinary order that the children live with Mr Ross and the recovery order is a separate matter. From the child’s perspective, it’s the equivalent of being arrested. The federal police turn up and take you away in a car, though, only as far as Mr Ross’ home. So could you address on me why I shouldn’t give the mother an opportunity to comply with a residence – interim residence order, if I make one.
MR SPERLING: Your Honour shouldn’t be doing that because of the matters that I’ve raised and, in particular, because of the mother’s lack of engagement in these proceedings, her inability to be able to attend these proceedings, or lack of attending these proceedings or being engaged in them, and her inability to provide X and Z in this process at all. In circumstances where the mother has deliberately refused to engage them in this process where the concerns are such, your Honour will be minded to make orders that immediately place the children in a situation where they can be relatively safely attended to. If your Honour allows the mother to provide the children to the court, that doesn’t give the court any power. The mother hasn’t attended. If the mother had attended it may well be an issue that I have to address today and that’s why the orders were drafted.
The orders that are being sought are, firstly, for pending further order, the maternal uncle have the sole parental responsibility and that the children live with him because he’s not a biological party to these proceedings and for the purposes of ensuring that, to give a recovery order simply to take the children off the mother, but without placing them in a third place, is putting the cart before the house.
HIS HONOUR: Yes. No, I understand that.
MR SPERLING: Can I
HIS HONOUR: But I just want you to – are you saying the evidence indicates two things, that if I – were I to simply make the order that the children live with Mr Ross and that be communicated to the mother, are you saying the inference that can be drawn about what is known of her past contact is that 1, she’s unlikely to comply with that order and, 2, may seek to relocate again to avoid enforcement proceedings and, 3, the mother, potentially, fleeing again would, potentially, place the children at further risk. Is that
MR SPERLING: Yes. Yes to all three.
HIS HONOUR: All right. And you say that there’s no direct evidence of that but that’s the most powerful inference and most likely inference to be drawn from the collection of evidence that we have?
MR SPERLING: It’s an inference that is more likely than not to occur in the independent children’s lawyer’s view if your Honour doesn’t make those orders.
HIS HONOUR: Yes. Thank you.
(see: line 4 of p. 29 to line 4 of p. 30 of the transcript dated 8 December 2021).
The Father addressed me in short submissions that included the following:
HIS HONOUR: Yes. What do you wish to say to me? Mr Sperling has fairly persuasively and powerfully advocated orders very similar to the orders that you seek and it’s probably worthwhile if you concentrate on any parts of the orders that he seeks that you disagree with or anything further that you seek that he opposes.
MR ROSS: No. I think everything he’s done is good. The only reason we didn’t opt for the no visiting the mother at all is we thought it might be an incentive for her to actually get help, because that’s what we want her to get, is help, not actually just disappear.
HIS HONOUR: Yes.
MR ROSS: Also, I do agree with him. Well, I’ve known my sister a long time and I’d actually be surprised if she’s still in the house now that she was in knowing that this court hearing is going now so I do reckon she will
HIS HONOUR: Well
MR ROSS: have – they will have to be taken by cops, the kids, not by us so
HIS HONOUR: All right. And, Mr Ross, the ICL is concerned that – to make an order that the mother see the children supervised by you at this point in time with the limited information that we have, creates too high a risk that there will be enormous trouble when she sees the children for all of the children, not just two of them, but all of the children, including your children, that there will be hell to play on those occasions. That it’s putting too much of a burden on you to look after all the children and sort out what her mental state is at the moment. What do you say about that?
MR ROSS: I’d agree with that and with her mental state and how she’s been, you know, like, you never know what she’s like. She blows up one minute and she can be half decent the next so you never know what she’s going to be like on the day.
HIS HONOUR: All right.
MR ROSS: We sort of just wanted what was best for the kids so we thought, you know, we know W and Y didn’t want to see her but the two that are with her may have wanted to see her and that was what we were going for. But, ideally, for the first, probably, four, five months I’d say that, yes, it probably wouldn’t be best to catch up with her, at least until we see what goes on.
(see: line 39 of p. 34 to line 31 of p. 35 of the transcript dated 8 December 2021).
I took into account all of the submissions I received, the evidence filed, the exhibits tendered, the section 11F memorandum and the family report. I took into account all of the provisions of Part VII the Family Law Act 1975 (Cth) (‘the Act’) and in particular sections 60CA to section 60CC(3). Those provisions are as follows:
60CA: Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
60CB: Proceedings to which Subdivision applies
(1)This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.
Note:Division 10 also allows a court to make an order for a child's interests to be independently represented by a lawyer in proceedings under this Part in which the best interests of a child are the paramount consideration.
(2)This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68R applies.
60CC:How a court determines 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).
Note:Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
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.
In particular I took into account the primary considerations and the command of section 60CC(2A), that is I must place greater weight on the protective or second primary consideration.
I found that there was a real and substantial risk that X and Z were not being cared for appropriately, that they were not being educated properly and that if the Mother learned of an order that the children live with the maternal uncle, that she would flee with the children X and Z and that flight, and the uncertainty for children that goes with flight from authorities, would impact adversely upon X and Z. I could not take into account the wishes of X and Z. I found that X and Z had an appropriate relationship with W and Y, and that whether or not they did have such a relationship, they should have the opportunity of building a sibling relationship with W and Y. Sibling relationships are, or should be, for the whole of a lifetime. I found that the children will be adequately cared for and loved in the home of the Maternal Uncle.
In all of those circumstances I found that it was in the best interests of all of the children, and W and Y in particular, that until further order all of the children live with the Maternal Uncle. I found that the blunt legal instrument of a recovery order was tragically necessary to promote the welfare and best interests of W and Y because of the real risk that the mother may flee and not cooperate with the order that all of the children live with the Maternal Uncle.
I found that the ICL and counsel for the ICL had carefully thought through and contemplated all of the evidence, the risks to the welfare of W and Y, and the best interests of the children. In those circumstances I made orders at the conclusion of the hearing on 8 December 2021, largely in the form sought by the ICL and the maternal uncle.
When the hearing concluded I indicated that I hoped to deliver my reasons the following Friday but due to the number of cases still to be heard I was unable to do so. These are my reasons. The matter returns for interim defended hearing, depending on the circumstances in the meantime, for interim defended hearing on the February 2022 Albury circuit sittings of this court.
On 13 December 2021 my Associate received an email from the Australian Federal Police (AFP) (marked C4 13.12.2021) which omitting formal parts said:
Please be advised that the Family Law Recovery Order in the matter of ROSS & FINDLAY AYC104/2020 was executed on 10/12/2021.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 18 February 2022
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