Grant and Aiden (No 7)

[2016] FamCA 654

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO 7) [2016] FamCA 654

FAMILY LAW – CHILDREN – Parenting – where contravention found proved but mother not co-operating about having child assessed as to whether enforcement by compensatory time is appropriate – s 11F order made – mother’s applications not prosecuted because of her absence – struck out.

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 22 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

THE RESPONDENT: No appearance

Orders

1. That the contravention application issued by the father is adjourned to 10.00am on 29 April 2016.

2. That all other substantive applications that are extant after these orders are adjourned to 10.00am on 29 April 2016.

3. That the mother’s application in a case filed 15 April 2016 is struck out for want of prosecution.

4. That the mother’s contravention application filed 15 April 2016 is struck out for want of prosecution.

5. That paragraph 3 of the order made on 15 April 2016 is discharged.

6. That paragraph 2 of the order made on 15 April 2016 is varied so that it reads:

   [2].That notwithstanding the existing parenting orders, the child V born … 2006 (female) (“the child”) be delivered to the father for the purposes of her attendance upon a family consultant at the Brisbane Registry of the Family Court of Australia as soon as practicable but by arrangement with that registry.

7. That the Melbourne Registry provide to the Brisbane Registry for the benefit of any family consultant appointed to prepare a report under s 11F of the Family Law Act 1975 (Cth) (“the Act”) the following:

   (a)      the reasons for judgment of 22 March 2016;

   (b)the mother’s undated letter to the Registry Manager of Melbourne received on 21 April 2016;

   (c)      the mother’s affidavit with annexures filed 15 April 2016;

   (d)a copy of the Family Violence Order of the Magistrates’ Court of Queensland made on 15 April 2016;

   (e)      the affidavit said to be by Mr Aiden filed 21 April 2016;

   (f)       the family report dated 21 December 2010.

8. That for the purposes of the conclusion of the contravention application of the father, a family consultant provide a report under s 11F of the Act to address the issue of whether it is in the best interests of the child for her to have compensatory time with the father.

9. That the reasons this day be transcribed urgently and be made available in due course to Brisbane Family Consultant appointed to conduct the inquiry.

10. That the mother attend personally at the Family Court of Australia at MELBOURNE on 29 April 2016 at 10.00am.

11. That if the mother fails to attend on 29 April 2016 at Melbourne, the father has leave to seek the issue of a Warrant of Apprehension for her arrest.

12. That pursuant to Section 68L(2) the Family Law Act 1975 the child V born … 2006 (female) be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and IT IS FURTHER REQUESTED that if practicable Susan MacGregor be reappointed and that should she be so appointed, at her request, the Melbourne Registry provide copies of the documents referred to in this order as being provided to the Brisbane Registry of the Family Court of Australia.

13. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

14. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

15. Pursuant to s 68P(1)(a)(ii) of the Family Law Act, these orders contain a recovery order as defined by s 67Q of the Act. That order is inconsistent with the temporary protection order issued on 15 April 2016 by the Magistrates’ Court of Queensland.

16. For the purposes of s 68P(2) of the Act, the contact which is inconsistent with the temporary protection order requires the father, MR GRANT to collect V and deliver her to the Child Dispute Services Section of the Brisbane Registry of the Family Court of Australia.

17. For the purposes of s 68P(2)(c) of the Act, the explanation for the making of this order is contained in the reasons for judgment published on 22 April 2016 by this Court and which are to be made available to the mother.

18. For the purposes of s 68P(2)(d) of the Act, these orders are made to enable the Family Consultant to assess the future interests of the child and whether it is proper to order that she spend future time with the father. The obligations created by this order are:

    (i)       for the father to deliver the child as directed;

    (ii)for the mother not to hinder or interfere with such delivery of the child to the relevant Family Consultant.

    Should either mother or father fail to comply with this order (as just outlined) the consequences may include imprisonment of up to 12 months.

19. For the purposes of s 68P(2)(d)(iv) of the Act, the reasons for making this order which is inconsistent with the temporary protection order are that the mother has:

    (i)       refused to return the child to live in Melbourne;

    (ii)      not complied with a parenting order; and

    (iii)not delivered the child to the relevant Family Consultant for the purposes of assessing what is in her best interests.

20. For the purposes of s 68P(2)(d)(v) of the Act, either party may apply to this Court for a revocation of the order by application in writing supported by an affidavit.

21. For the purposes of s 68P(3) of the Act, a copy of this order is to be provided to:

    (i)the Registrar of the Magistrates’ Court at Brisbane (reference MAG-… returnable 12 May 2016 at 9.00am);

    (ii)the Chief Commissioner of the Queensland Police Force (reference as above), 200 Roma Street, Brisbane City, 4000;

    (iii)the Department of Communities, Child Safety and Disability Services, 111 George Street, Brisbane 4000 (Reference Ms Aiden, PO Box …, QLD…).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden (No 7) 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 MELBOURNE

FILE NUMBER: MLC 5094  of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

REASONS FOR JUDGMENT

1. This is the return date of orders that were made by the court on 15 April 2016.  On 22 March 2016 in the absence of the mother, Ms Aiden, I published reasons for judgment in a contravention application.  The proceedings had to be adjourned because in my view at that time the only avenue open to the court to conclude the proceedings was to make an order for compensatory time.  Compensatory time could not be ordered unless the court was satisfied that it was in the best interests of the child to do so.  Because the evidence did not enable me to make that finding I ordered that the child be delivered to a family consultant for the purposes of making that assessment.

2. The child was not produced, and a recovery order was then issued on 15 April for the child to be collected by either the Federal or State police and delivered to the applicant father to be handed to the family consultant at the Melbourne registry on 19 April for the purposes of conducting the report that I was seeking.  It is clear that the recovery order was not executed, and I have a brief report from the family consultant, who indicated that whilst the applicant father attended, the child did not.

3. Throughout all that period, a plethora of papers has been filed by the mother, including a notice of appeal against the judgment, as distinct from the orders, an application in a case seeking a variety of orders and a contravention application against the father. 

4. The application in a case and the contravention application were both listed for hearing before the court today.  Obviously, it is a matter for the court to decide when a hearing is listed, and today was allocated.  There can be no doubt that the mother was aware of the hearing today because in a long letter she has written – she says – and I quote:

   This matter cannot proceed further because there are no grounds or change in circumstance in both the case application and final orders application filed by [Mr Grant] that would allow the Family Law Court to change the current parenting orders of 4 February 2011.  There is a current temporary domestic and family violence protection order against [Mr Grant] protecting the child and is attached hereto.

5. She then goes on to say:

   Actual bias is present, and a mismanagement of the case has taken place, resulting in illegal proceedings in this matter to which I will not be a party.

6. Finally she says:

   It is for this reason that the hearing on 22 April 2016 is to be vacated, including on the grounds that an abuse of court process and procedural unfairness ..... an application for contravention filed 22 February 2016 does not exist, and, as such, all judgments and orders ..... in these proceedings are null and void.

7. I raise that because of two things.  First, it indicates quite clearly that she has been aware that the court had issued her documents for today.  She has not attended.  Previously the mother had sent to the court an application to have any hearing in which she was to be involved determined by electronic means, but I refused that application in chambers on the basis that I had previously ordered that she attend in person.  In any event, wanting to attend by electronic means would seem to conflict with her view that the hearing today should be vacated on the grounds of an abuse of court process and procedural unfairness as she has indicated.

8. Her application in a case today also seeks orders that pending the appeal, the orders that I made be stayed.  The difficulty I have in understanding exactly what she is doing is not what she says in the letter to which I have just referred but, rather, the substantive application in which I am part-heard is the contravention application.  At this stage, in relation to that contravention application, I have not made an order as such.  There is no right of appeal in relation to the contravention.  One does not appeal against the judgment.  The litigant’s right of appeal is against the order.

9. Even if her notice of appeal could be construed as appeal against the orders that I made in her absence for the return of the child to Victoria and the issue of the recovery order, both of those matters are interlocutory, and, as such, she would require leave to appeal in any event.  It seems to me that her stay application, therefore, is misconceived.  Be that as it may, she is not here to prosecute those applications. 

10. When I issued the order for the recovery order, it was anticipated that by today, the section 11F report would be completed and that would give me some indication as to what views an expert would have about what was in the child’s best interests.

11. The complicating factor in this case now is that the mother has obtained an ex parte application for what is described in Queensland as a temporary protection order.  The temporary protection order excludes the father from being, effectively, anywhere near the child.  There is no exemption in that order or any provision, as there are sometimes seen, that would enable a Family Court order to be implemented. 

12. It troubles me, therefore, that the recovery order would clash with the family violence order and potentially put both the executing officer and the father in some peril. The correct approach, in my view, in relation to that is to deal with the provisions of section 68P of the Act.

13. Where a family violence order is inconsistent with a Family Court order section 68P provides certain things can be done. Section 68P(1)(a)(ii) includes a recovery order. It is limited to spending time with a child, but it is conceivable that the order I have in mind is for the executing officer of the recovery order to hand the child to the father, who would then deliver her to the family consultant. This is a provision that applies here. When the court makes such an order it must, to the extent that the order provides for such an event, specify in the order that it is inconsistent with an existing family violence order.

14. There is a certain irony about that in this case because this is not the first time such an order has been made. In my reasons for judgment of 22 March I made reference to the order made by Dessau J. Section 68P(2) goes on to provide that the court must give a detailed explanation in the order how the particular contact which is provided is to take place. I shall do that, but, in case there is any uncertainty, the contact I am contemplating here is restricted to the delivery by the father to the family consultant for the purposes of the completion of the necessary report that I previously ordered.

15. What is clear not only from the family violence order but also from my reasons from 22 March, as well as other evidence, the child is now in Brisbane or, at least, in Queensland.  To order a recovery order be executed and for her to be brought back to Melbourne for that purpose, apart from the obvious delays, may cause further distress.  It seems to me that if the recovery order is executed and she is taken by the father to the Family Court in Brisbane, subject to the resources of that registry being available, the distress can be limited.  Indeed, the mother could attend if she so wished.

16. For the purposes of s 68P, any contact between the father and the mother in that environment could not be seen as a breach of the state family violence order because of the fact that I desire at least the child to be present, and if it is necessary for the family consultant to complete the report for the mother to be there as well – and I interpolate here that I would not understand that to be absolutely necessary – then so be it. Subsection (2) then provides that the court is mandated to explain to both parties in the proceedings just what is the nature of the order or injunction.

17. I have the handicap in this case of not having any assistance from the mother at all. Indeed, I have distinct opposition, but I am going to have these reasons expedited and published as quickly as I can so that she will at least understand that for the purposes of section 68P(2)(c) the particular order is limited to enable the court to conclude its responsibilities in relation to the Family Law contravention application.

18. Subsection (2) also requires that the court include in the explanation, in language that persons are readily able to understand, the purpose of the order;  the obligations created by the order, including as to how any contact is to take place;  the consequences that may follow if a person fails to comply with the order;  the court’s reasons for making the order to the extent that it is inconsistent with a family violence order;  and the circumstances in which a person may apply for a variation or revocation of the order.

19. Dealing with two of those particular matters sequentially, first, a failure to comply with the order would amount to a contravention.  The mother’s obligations are not to interfere with that order.  To the extent that she took action to evade the execution, deliberately, to thwart it, that most likely would amount to a contravention, in which case she would face the consequences.

20. The second matter is that she has the opportunity to apply to vary or revoke that order.  It is ironical that, when I made the order on 15 April for the recovery order, she simply opposed the order.  I refer to the letter that she wrote to the Court. 

21. She has made no application today to set that order aside and, to the extent that she considers it is not appropriate for the Court to order a recovery order, I am listing the matter for next Friday, so a week from today, so that she can have the opportunity to attend and personally seek to have the order set aside.  The dilemma, of course, is that I am going to expedite the order so, to the extent that the relevant police authorities execute it, notwithstanding her opposition, that is something that she will have to deal with.

22. I make it abundantly clear, therefore, that the purpose of the recovery order is to enable the Court to fulfil its obligation to complete the contravention order by obtaining information from an independent and expert source as to what is in the best interests of this child.

23. I interpolate here also, for that particular issue to be considered, that in my reasons for judgment, I dealt with all of the issues of an evidentiary nature as to what the conflict was between father and daughter.  Subsequent to the adjournment, material of some voluminous nature has been filed at this Court which goes way beyond the evidence that the mother gave to this Court over two days.  It includes statements of what could only be said as being made by a very distressed child in relation to allegations against her father.  None of that evidence was given to me and it seems to me that I should, at this stage, treat it very cautiously.

24. The second matter is a very disturbing one.  On 21 April the mother filed an affidavit by her son, Mr Aiden, who described himself as a student.  The narrative of the affidavit simply says:

    I am giving my sister…a voice in these proceedings. 

25. Attached to this unusual affidavit is a handwritten statutory declaration by a woman who I recall from the proceedings to be the material grandmother.  I do not intend to deal with that.  The second document is a handwritten note, purporting to be written by the child herself, which she addressed to me, indicating that she did not want to live with her father ever again and then she said:

    Because his mean, cruel and he argues with [Ms C].  I don’t want my mum or me to go to court ever again.  Every time I talk to someone, it always stays the same.  I like living in Queensland.  I don’t want to see him.  I like my new school.  I’m staying in Queensland with my mum and brothers.

26. Sadly, that document was witnessed by a justice of the peace, which clearly indicates that this child is being dragged through the process and very much involved in it.  I find that very disturbing.  On that basis, I propose to make available to the family consultant, not the whole of the file, but rather the following documents:

    a)my reasons for judgment of 22 March 2016;

    b)the undated letter of the mother addressed to the registry manager;

    c)the mother’s affidavit of 15 April 2016 with annexures;

    d)a copy of the family violence order of the Magistrates Court in Queensland made on 15 April 2016 on an ex parte basis;  and

    e)the affidavit said to be by Mr Aiden of 21 April, to which I have just referred.

27. I propose, also, to have these reasons transcribed urgently and, when available, to be made available to the family consultant in Brisbane.

28. There are serious problems in this case, which are being exacerbated by the mother’s railing against the Court concluding its determination.  I want to make clear that the mother has every right to appeal against any determination, but the logic that she is using in relation to the letter to which I have earlier referred about the illegality of the proceedings and the abuse of court process is, on the face of it, just nonsense.  Most of those matters were dealt with in the reasons for judgment of 22 March.  

29. Insofar as she alleges procedural unfairness, it is ironic that when the matter was listed for hearing she filed a certificate from a doctor or, at least, indicated she was unwell but, on any view, she was certainly not, to my understanding, in Victoria.  It looks remarkably to me like some sort of game is being played here and it needs to stop for the child’s sake.

1. I have had considerable discussion and assistance from counsel for the father, who has clearly thought about what course of action should be taken, and he considers that it is important that the case continue so that he participates in the life of his daughter.

2. One might wonder why someone might do that with all of the hurdles that have been put in his way, but when one reads what I wrote in the judgment of 22 March 2016, this has been a constant problem, as this, to my knowledge, is at least the third contravention where the mother has been found to have contravened the orders.

3. In my view, this case needs a resolution and, importantly, quickly.  I will be not sitting in Melbourne for at least three months from the end of next week and, accordingly, I propose to have the Court in Melbourne approach the Brisbane registry to alert them to the prospect that we need to do something quickly, but also to request that the Australian Federal Police execute the recovery order that I now propose to make quickly as well.  I do not propose to issue a new recovery order.  I simply propose to alter the existing one and to make it clear that the Australian Federal Police, or state police, are to execute it notwithstanding the family violence order. 

4. The matter is otherwise adjourned for further determination next week and, to the extent that the mother reads these reasons before then, I do not propose to allow her to deal with the matter by electronic means and I also intend that she will attend personally.  If she does not attend on 29 April 2016 personally or by legal representative, I shall give the father leave to issue, orally, an application for the issue of a warrant for her arrest.  What happens thereafter may be a matter for some other judge to determine.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 April 2016.

Associate: 

Date:  4 May 2016