Grant and Aiden (No 9)

[2016] FamCA 656

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO 9) [2016] FamCA 656

FAMILY LAW – Contravention – compensatory time
.

Family Law Act 1975 (Cth)

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 29 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

1. By way of compensatory time, the mother deliver the child the child V born … 2006 to the father at 1.00pm on Monday 2 May 2016 on the forecourt outside of the Family Court of Australia Melbourne Registry.

2. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the said child V born …2006 deliver the said child to the father forthwith, he being the person entitled to have the said child live with him, pursuant to orders made in the Family Court of Australia this day.

3. That the said recovery order lie in the Registry but that should the mother fail to comply with paragraph 1 of these orders, it forthwith be released to the Australian Federal Police for execution.

4. That the release of the said recovery order shall be a decision of the Duty Registrar who shall be satisfied upon the personal assurance of the father after 1.00pm on Monday 2 May 2016 that the child has not been delivered into his care.

5. Upon the execution by either the Australian Federal Police or the police officers of the State Force of the State of Queensland, the child be handed to the father in Queensland.

6. That by way of compensatory time, the child remain with the father for 21 days and thereafter remain in his care until further order of the Court.

7. That the contravention application in this case be otherwise dismissed.

8. That all outstanding applications for interim and substantive relief are otherwise adjourned to 10.00am on 24 May 2016 in the Senior Registrar’s list of case for determination as to what should happen to the child from that date onwards.

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   AND THE COURT NOTES:

   A.       To the extent necessary to say so, any officer of the Australian Federal Police or of the State Police Force for the State of Queensland who is charged with the execution of any recovery order under these orders should be aware that such a recovery order is inconsistent with a domestic violence order issued out of the Magistrates’ Court at Brisbane in the State of Queensland but the formal details of the rights of the father are set out in the orders of this Court of 22 April 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden (No 9) 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 proceedings for contravention the purpose of which is to conclude the outcome.  I do not intend to traverse all of the matters again because they are hopefully set out in my findings as detailed in the published judgment at the end of March.  Suffice to say that since that time it has been difficult to get to this concluded position.  I made it very clear in the reasons that the Court’s hands were largely tied and the compensatory time was one of the few opportunities that the Court had to make an order.

2. Because of the provisions of the Act I required a family consultant to examine the question of how time with the child’s father would work and whether it was in her best interests.  Today I have had the benefit of hearing the evidence of Ms S who is a family consultant in Brisbane.  Ms S only saw the child, and the parties, yesterday and I was provided with her written report early this morning.  To the extent that the mother alleges that she has been prejudiced by not being able to process that, I reject that on the basis that she heard exactly what everyone else heard in the proceedings but she had the distinct advantage of knowing exactly what the child had been through yesterday and no doubt what the child was saying.

3. There is little in that family report that would take anyone by surprise.  It is important therefore that I deal with that evidence briefly.  What Ms S said was that the child was certainly distressed by the potential of being reintroduced to her father in the registry.  But, when she was withdrawn from a position where she would have seen her father,  she immediately settled and was quite happy.  Ultimately it is the opinion of the counsellor that matters.  What the counsellor said was that if there was a compensatory time order, the child would most likely be distressed and I quote:

   Although she could possibly settle with her father.

4. The family consultant went on to say that there will be ongoing distress each time that there is the commencement of a new contact period.  The dilemma for the court is that the extant orders require alternate weekends but the mother has unilaterally moved the child to Queensland making the implementation of that order virtually impossible.  As I indicated, it is not my function to determine the longer term future of the child but simply to deal with the conclusion of the contravention case.  The family consultant’s view is that it is in the best interests of the child for her to have an ongoing relationship with her father.

5. Indeed, surprisingly enough, Ms Aiden seems to say the same thing but that it should be done through some form of therapeutic counselling.  That leads me to the respective proposals.  On a number of occasions I endeavoured to find what Ms Aiden’s view was about proposals and ultimately what she has put to me is that instead of putting the child through the “trauma” there be a build-up through therapy leading ultimately to phone calls.  After the break in the proceedings had at her request, she said that she would seek an order that the child remain with her but that she return to Victoria to the child’s old school and then therapy could commence.

6. Interestingly, the family consultant discussed with the child the question of her schooling and the child indicated that she had spoken to the children that she was friendly with at her former  school about the fact that she was leaving.  That leads me to be very suspicious about how that piece of volunteered information was provided to the family consultant because, in my reasons for judgment, it was stated that the child had been removed from Melbourne without even saying goodbye to her friends.  More significantly, the school, I have been told, sought assistance from the police to do a welfare check because they had not been told of the child’s literal disappearance.

7. There is little doubt in my mind that the child is deeply involved and embroiled in this litigation and that is very sad.  Nothing I have heard today indicates that existing orders should not be carried out.  The tyranny of distance creates a problem as to how that should occur and I am comforted by the fact that Ms Aiden is indicating that she is going to return the child to school in Melbourne and no doubt she will live there as well.  That does not overcome the problem, however, of compensatory time. 

8. Nothing I have heard from Ms Aiden today indicates how the relationship should be resumed other than through therapy and no doubt the family consultant agrees that therapy is necessary but that might be more important for the longer term. 

9. Nothing I have heard today indicates that the child would not settle with her father over a period of some period of time.  There is no magical answer as to what the appropriate period of time is but it seems to me that it must be at least three or so weeks.  Without any real assistance from the mother as to what sort of orders of a compensatory nature I should make, I was left with the positions put by the father and by the independent children’s lawyer.  They are more or less ad idem.  Their suggestion is that it be for a period of three weeks but effectively that it be until further order so that on the return date, the Court can actually work out whether the father’s extant application for a change of residence should then apply at least on an interim basis.

10. I make no observations about that other than the fact that I can expect that there will be ongoing litigation between these parents because it has been extant effectively for the entire life of this child. 

11. In my view it is in the best interests of the child that there be compensatory time.  Nothing I have heard has supported the suggestion that the distress would be anything other than short-lived.  The biggest concern I have is to how that particular compensatory order might be implemented. 

12. It does not take much imagination to realise that there is likely to be little cooperation from the mother in handing the child to the father.  But I propose to make that order.  The real distress will come for the child, more importantly, on the assumption that her mother will not encourage her that this will be a pleasant experience, if the police have to intervene.  I could not think of anything more dreadful for a child who is already distressed being taken away by a police officer and handed to the person whom she understands is a person she does not want to be with.

13. That seems to me to be the mother’s choice.  What I propose to do is to make an order that if the child is not delivered then a recovery order will be issued today and it will be signed today but it will lie in the registry and upon the time clicking over for the voluntary delivery of the child, the recovery order can issue and then the police will execute it and hand the child to the father in Queensland.  It is not the function of the Australian Federal Police or the local police to actually babysit and/or deliver a child interstate.

14. Mr Grant will therefore need to be present for the purposes of the handover.  The dilemma then flows to what happens after that period of time.  It seems to me the logical conclusion is that I set up an interim hearing and in this case I propose to make that 24 May at 10 o’clock in the morning in the senior registrar’s list of cases.  The senior registrar is delegated with the powers to make interim parenting orders.  He will determine on that day – and I will make no indication at all in these reasons what my views would be as to what should happen. 

15. I will leave it entirely to his discretion based on proper Part VII principles.  I will ensure that the order that I make for compensatory time runs until further order.  That means that if, indeed, there is a problem about 24 May or some other event occurs the child will remain with her father until the Court otherwise orders. 

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 April 2016.

Associate: 

Date:  5 May 2016