Gifford & Savea
[2022] FedCFamC1F 340
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gifford & Savea [2022] FedCFamC1F 340
File number(s): PAC 3784 of 2019 Judgment of: CHRISTIE J Date of judgment: 12 May 2022 Catchwords: FAMILY LAW – RECOVERY ORDER – where final orders were made for the child to live with the father – where the mother failed to return the child to the father’s care – where allegations of sexual abuse have not been substantiated Legislation: Family Law Act 1975 (Cth) s 67Q, 69ZW, 68P, 60CG Division: Division 1 First Instance Number of paragraphs: 65 Date of hearing: 12 May 2022 Place: Sydney Counsel for the Applicant: Mr Schroder Solicitor for the Applicant: Rafton Family Lawyers Solicitor for the Respondent: Mr Doueihi, Eden York Lawyers Solicitor for the Independent Children's Lawyer: Mr Wilkins, Phillip A Wilkins and Associates ORDERS
PAC 3784 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GIFFORD
Applicant
AND: MS SAVEA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
12 MAY 2022
THE COURT ORDERS THAT:
1.A Recovery Order Shall issue. This Recovery Order is addressed to the Marshal, all officers of the Australian Federal Police, all officers of the State and Territory police forces;
(a)Such persons are authorised to find and recover the child X born 2018 (“X” or “the child”) and for that purpose, with such assistance as they require:
(i)to stop and search any vehicle 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;
(ii)to enter and search the premises or place situated at and known as P Street, Suburb Q.
2.The child is to be delivered by the mother or her nominee to Mr Gifford (“the father”) at Suburb C McDonalds at 11.00 am on 13 May 2022 or thereafter for the purpose of the recovery order, to the father or as he directs.
3.The following directions shall apply to the day to day care of the child until the child is delivered to the father:
(a)Ms Savea (“the mother”) is prohibited from again removing or taking possession of the child (other than in accordance with these orders).
(b)If Ms Savea again removes or takes possession of the child (other than in accordance with these orders she may be arrested without a warrant.
4.The execution of Order 1 (above) is stayed until 4.00 pm on 13 May 2022.
5.In the event that the mother refuses or neglects to comply with Order 2 then the Recovery Order will issue and the stay will lapse on the filing of an affidavit by the father indicating that the child has not been returned.
6.The Recovery Order will remain in force for 12 months.
7.Orders 9, 10, 12, 13, 14 and 15 of the orders made 14 July 2021 are suspended.
8.X spend time with the mother once per week for a period of two hours professionally supervised on days and at times nominated by the supervised contact centre or agency.
9.The mother and father do all acts and things and sign all documents necessary to register with a supervised contact agency or centre nominated by the Independent Children’s Lawyer within four days of being notified and thereafter follow all directions of the centre or agency.
10.These proceedings are adjourned to the Magellan Registrar in Chambers for consideration.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gifford & Savea is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for a recovery order in respect of X born in 2018 (“the child” or “X”).
The applicant is Mr Gifford (“the father”). The respondent is Ms Savea (“the mother”).
The parties entered into final consent orders which dealt with parenting arrangements for the child on 14 July 2021 (“the final consent orders”). The parents were represented when those orders were made by consent and there was an Independent Children’s Lawyer (“ICL”).
The orders provided for the child to live with the father and spend time with the mother.
The father brought an Application in a Proceeding seeking a recovery order on 3 March 2022.
The mother filed a Response to that application on 31 March 2022.
The matter was listed before Myers J in the Federal Circuit and Family Court of Australia (Division 2) on 10 March 2022. His Honour appointed an ICL and made an order under s 69ZW. He listed the matter before himself for interim hearing on 5 April 2022. He did not hear the matter.
This matter is urgent and it is unfortunate that no Court has been unable to hear it until today.
BACKGROUND
The orders of 14 July 2021 provide:
2. That [X] (born […] 2018) (child) live with the father.
…
9. The child shall spend time with the mother as follows:
(a) from the date of these orders until the mother relocates to [Suburb H] in week 1, from 3:00pm Friday until 5:00pm Monday, with changeover to occur at the [Suburb D Park];
(b) from the date the mother moves to [Suburb H], until [X] starts school in 2023:
(i) In week 1, from 9:00am Saturday until 9:00am Tuesday; and
(ii) In week 2, from 2:00pm Friday until 5:00pm Saturday;
(c) from the commencement of the school Term 1 in 2023:
(i) In week 1, from after school Friday until 9:00am Tuesday; and
(ii) In week 2, from 3:00pm Monday until 7:00pm Monday.
Those orders were made after the family report was released and with the assistance of an ICL. All parties were legally represented.
Between August 2021 and March 2022 the mother’s affidavit material sets out what she contends are disclosures by the child of having been sexually abused whilst in the father’s care. They were not allegations that the father had abused the child but that he had permitted others to do so (or alternatively allowed others do so by delegating his caring responsibility).
The mother reported these matters to the Department of Communities and Justice (“the DCJ”) who investigated but did not substantiate the allegations of abuse.
The DCJ provided records in answer to an order under s 69ZW of the Family Law Act 1975 (Cth) (“the Act”). Those records include this statement:
DCJ have been clear with [Ms Savea] that she should be adhering to legal orders however [Ms Savea] feels that her fear that something may happen to [X] overrides the need to adhere to legal orders unless she has a guarantee that [X] will live in her care.
The father says there are no other members of his household and he has not left the child with any other person (save at child care) except as set out in paragraph 28 of his affidavit.
X came into his mother’s care on 31 December 2021. He has remained there.
On 18 January 2022 X was, pursuant to the final orders, due to be returned by the mother to the father.
The mother did not return the child.
On 6 February 2022 the mother contends that the father video called the child and the following conversation occurred:
Father: I [sic] going to take mum to gaol, your [sic] not suppose to be there, mum suppose to bring you back to me
[X]: No don’t call the police
Father: No don’t you dare say that, I am going to beat you, and your mum
[X]: No don’t beat my mum and me
Father: I am going to kill you your [sic] mum and big brother
[X]: No, no don’t
Father: I am going to skin you and your mum alive
The police applied for an Apprehended Domestic Violence Order (“ADVO”) on the mother’s behalf and a provisional ADVO issued for the protection of the mother and the child on 7 February 2022. It prevented the father seeing or spending time with the child. The father was also charged with offences and says he has entered a plea of not guilty.
Each of the parties was represented before me and relied on affidavit material. In the mother’s case she filed two affidavits by herself, an affidavit by the maternal grandmother and affidavits by her siblings. The ICL had prepared a tender bundle and tendered the family report. I also had before me, as I identified at the commencement at the hearing, the material produced pursuant to the order made by Myers J under s 69ZW.
THE LAW
Section 67Q of the Act gives me the power to make a recovery order.
It is a wide discretion characterised by the words “such recovery order as … [the Court] thinks proper.”
It is appropriate to have regard to the existence of a recent final consent order, any changed circumstances and any evidence touching on the child’s best interests.
All parties seek to change the existing parenting orders. In considering that application I must apply the best interests principle: s 60CA of the Act. I must balance any risk to X in the proposals of either parent against his right to know and be cared for by each of them. I must give precedence to protecting him from physical or psychological harm, from being exposed to abuse neglect or family violence.
These are interim proceedings and I need to consider the fact that the evidence is untested. It will be necessary to place significant weight on the available objective evidence.
CONSIDERATION
X’s parents agreed that he should live with his father and spend time with his mother. The mother raises questions about her agreement to those orders. But that agreement became an order of the Federal Circuit and Family Court of Australia (Division 2).
After the making of that order, X’s mother determined that it was her view that there remained a risk to X in the father’s care. She now seeks orders that X live with her and have supervised time with the father.
The father seeks orders that X be returned to him and concedes the appropriateness that the mother’s time be supervised.
The allegation of risk to X in the father’s care is not a new one. The mother had made allegations prior to the making of the final consent orders (both in respect of sexual abuse and in respect of family violence).
In these proceedings the mother has also raised a concern about the father’s mental health. The evidence before me establishes that the father has a diagnosis of depression which the records suggest is well treated. This predates the final consent orders. There is no evidence before me to indicate the diagnosis is a risk issue.
A conference was held by the DCJ on 2 February 2022 in an attempt to resolve the issue of the mother’s refusal to return X to the father’s care in compliance with the final orders. The parents were not able to reach a resolution. Material produced by the DCJ does not indicate that there is a risk to X.
It is submitted in the ICL’s case outline that, notwithstanding the mother’s concerns and allegations, no application was made by her when she retained the child, to vary or suspend the final orders. I agree with this submission.
It is important to understand these proceedings in light of what came before. A family report was prepared by Family Consultant Ms E (“Ms E”) on 7 July 2020. That report was available to all of the parties and to the Court prior to the making of the final consent orders. The allegations made by the mother were referred to in the report:
23 [Ms F] [the maternal Aunt] expressed concern that [X] was “grabbing” [L’s] penis, and speculated that this may indicate child sexual abuse.
…
48 [Ms B] threatened to “skin me [the mother] and [L] alive”.
(Family Report 7 July 2020, [23] and [48])
Notwithstanding these allegations, the mother consented to the making of the final consent orders. At the time she consented to those orders she was legally represented, including by counsel. X had an ICL.
The father has made three recovery order application in this matter, this being the first since the making of the final consent orders.
In the family report Ms E says:
It will be important for [X’s] future development that he is able to enjoy his parents input without the fear that one of them may suddenly be unavailable, and this will require a commitment from both parents to abide by any Orders made. If either parent is unable to achieve this, and unilaterally withholds [X], then it would be recommended that only supervised contact occur with the withholding parent.
(Family Report 7 July 2020, [93])
This particular quotation from paragraph 93 of the family report allows the parents to see the situation from X’s perspective. When time is unilaterally suspended, X experiences that as one of his parents being unavailable to him. That is not a situation which, absent risk, can persist. The police records tendered by the ICL record that on Wednesday 25 August 2021, X attended the child abuse unit and was interviewed. The records set out the following:
During the interview he [X] named the members of his family. He was asked where his father works. He disclosed his father works at an office and when he is at work [Ms M] [the paternal Aunt] cares for him. He was asked if Dad has a friend called “[Mr G]” in which he denied. He said he does not know anyone by that name. The victim appeared to be a little apprehensive when asked about his father and [Mr G]. This could be as a result of the ongoing custody battle between his father and mother. The mother was informed there was no disclosure made by the victim. At this stage DCJ has no evidence to substantiate the matter. No further police investigation required. Case to be closed.
As the allegations proceeded, the role of Mr G was taken as another person identified as Mr O. There has been no indication that any person by either of those names has had the care responsibility of X.
On 10 December 2021 the mother took X to K Hospital and he was transferred to J Hospital (“the hospital”). The records indicate that the mother had indicated to the DCJ that X was bleeding from his penis. She had not photographed this and had showered the child. The DCJ encouraged her to take the child to the hospital. She was reluctant but agreed. The hospital did not observe anything consistent with sexual abuse.
The mother’s sister also gives evidence of having seen the blood on (or perhaps in) X’s penis. The hospital is the appropriate agency to assess whether or not this circumstance was indicative of abuse having occurred.
The child was returned to the father after this event. X was to spend block time with the mother commencing 31 December 2022. That time took place. The mother did not return X at the conclusion of the block. There is no other disclosure set out in the material of the mother or in the material returned under s 69ZW or via subpoena which explains the mother’s decision not to return the child at the end of the block period.
The DCJ became involved, as set out above and, during the case conference, the mother continued to decline to return the child. Hence the father’s application for a recovery order.
The material produced by the DCJ records that there were 68 reports made to the helpline in respect of X in the period between 19 December 2018 to 2 February 2022, most of which were made by the child’s mother or the maternal family. The DCJ appeared to be concerned about the mother’s mental health. They note that the mother has no formal diagnosis but are concerned that her reasoning appears to be circular and she is dependent upon others agreeing with her. She has made multiple unsubstantiated sexual abuse allegations.
The DCJ have not substantiated any abuse and have not concluded that X is at risk in his father’s care. When X was in his father’s care he attended day care. The day care centre are not concerned about any behaviour by X indicative of having been sexually abused. The day care centre were concerned about the mother phoning the centre 20 to 30 times a day to enquire not just about X but about his living arrangements in the father’s home.
I earlier indicated that the mother relies upon evidence by her family. I accept the submission of the father’s counsel that some of that evidence is merely a recitation of matters that have been told to them by the mother. Some of that evidence raises a concern that there have been inappropriate discussions in X’s presence.
Taking the disclosures themselves as reported by the mother, at least some of them are infected by leading questions. By themselves they do not demonstrate that abuse has occurred.
The mother’s evidence taken at its highest – when viewed in the context of the available objective evidence – does not establish risk.
I cannot find on the basis of the material before the Court that there is a risk to X arising out of the allegations that he has been abused.
I cannot ignore the fact that the mother says that the father spoke to her on 6 February 2022 in a manner which was threatening. Equally I cannot ignore his denial.
Even if ultimately the father spoke the words attributed to him, he has been patiently waiting (for a significant period of time) to allow the court process to determine the circumstances of X’s return. This is not controversial. This fact alone would go significantly to lessening any concern that he may have spoken in a threatening manner or that he poses an ongoing risk to X.
It is necessary in the interests of X that he be returned to his father.
I now need to consider the application of the ICL to suspend the operation of the final consent orders. I take on board that when the matter was before me, that application was somewhat curtailed to the effect that the ICL says, and I accept that, organising for supervised time will in and of itself provide somewhat of a break.
The DCJ material records that the mother is “fixated and rigid” in her beliefs. Also, significantly and concerningly the records state that the mother:
…does not appear to understand the potential psychological harm [discussing concerns about sexual harm in front of [X] despite requests to desist] this may have if it is ongoing…
The DCJ identify this as a risk to X and I agree with that assessment.
DCJ record that they have concerns about the mother’s mental health. There is no evidence to suggest that the mother has been diagnosed with a mental health difficulty. The concern is that the mother may have an undiagnosed mental health difficulty.
I accept, as the mother’s lawyer raised, that the mother is in effect reaching out in circumstances she does not feel able to control. The concern remains that she finds it difficult to accept viewpoints which do not accord with her own.
The mother contends that her time should not be supervised going forward because she does not pose a risk to X. I disagree. The risk is twofold:
(a)That she will speak to him about the father or the allegations; and
(b)That she will retain him again.
Both of those constitute a significant risk to his psychological wellbeing.
This is a parenting application, that is a variation of an existing parenting order, and I need to consider all relevant considerations in the Act.
I find that absent any admissible evidence supportive of risk of sexual harm, X should remain living with his father.
That is inconsistent with the terms of an ADVO. I have considered my obligations under ss 60CG and 68P of the Act. I have formed the view that it is in the best interests of X that I make an order which is inconsistent with the existing ADVO.
The mother is represented and the role of explaining the inconsistency between the ADVO and the parenting order may be undertaken by her lawyers and I expect that will occur. The Court draws attention to the fact that the recovery order will take place at a public place by agreement and any further interactions will be in a supervised context.
I am satisfied that the variation does not place the child at risk given the father’s history of care, the nature of the allegations and the time which has elapsed since it is alleged the threat occurred. I can make no finding as to whether it did occur and for the purpose of these reasons I must treat it as having possibly occurred and I do.
Given X’s age I am satisfied that no explanation of inconsistency to him directly would be in his best interests.
The parties agreed in July 2021 that X should spend time with his mother every week. I agree that should continue. X would experience a cessation of that time as a significant departure from the position at present – more than four months has passed while he has been in his mother’s continuous care. He will also be separated from his brother and other maternal relatives with whom it seems he lives or spends time.
Against that, the mother has a history and a risk of retaining X. I am not confident that suspension of the mother’s time is the right approach. The risk posed to X from the mother retaining him is best ameliorated by supervision.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 12 May 2022
0
0
0