Griffin and Trueman (No 2)

[2014] FamCA 1158

FAMILY COURT OF AUSTRALIA

GRIFFIN & TRUEMAN (NO 2) [2014] FamCA 1158

FAMILY LAW – CHILDREN – Urgent – Recovery Order – Ex parte – where father has sole parental responsibility for all three children – where mother did not return children after spending time with them – orders made dispensing with service – Recovery Order made.

Family Law Act 1975 (Cth) ss 67U, 67V,

APPLICANT: Mr Griffin

RESPONDENT: Ms Trueman

FILE NUMBER: NCC 220 of 2012

DATE DELIVERED: 25 November 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 25 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr West of Slater & Gordon Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Leave is granted to the Applicant father to file the affidavit of Adam West sworn 25 November 2014 and the affidavit of Mr Q sworn 25 November 2014 in Court today.

2. A Recovery Order be issued to the Marshal of this Court and the police officers in all States and Territories to recover the children, B born … 2004, C born … 2005 and D born … 2006 and return those children to the father.

3. Such persons, that is, the Marshal of this Court and all officers of the Australian Federal Police and all officers of the State and Territory Police Forces of Australia are authorised and directed to find and recover the children and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the children may be found. The children are to be delivered to the Applicant father, Mr Griffin, at S Street, Suburb T, New South Wales ...

4. That Respondent mother, Ms Trueman, is prohibited from again removing or taking possession of the children.

5. If the Respondent mother again removes or takes possession of the children, she may be arrested, without a warrant.

6. This order remains in force until further order of this Court.

7. Order 4 of the final orders made on 1 August 2014 is suspended for a period of 14 days.

8. Any application by the father is to be filed within 14 days.

9. The costs of the Applicant father are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Griffin & Trueman (No 2) 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 PARRAMATTA

FILE NUMBER: NCC 220 of 2012

Mr Griffin

Applicant

And

Ms Trueman

Respondent

REASONS FOR JUDGMENT

1. This is an application for a Recovery Order under Division 8 of Part VII of the Family Law Act 1975 (Cth) (‘the Act’).

2. The Applicant is the father who is a person with whom the children are to live under a parenting order.

3. The subject children are B who is aged nine, C who is eight and D who is seven.

4. As indicated in the Reasons for Judgment given on 1 August 2014, these children have had a great deal of disruption in their lives since their parents separated and it is unfortunate to see that only a few months after that judgment was given it appears that the children again have been the subject of great disruption in their lives.

5. As previously indicated and for the reasons indicated, I am dealing with this matter in the absence of the mother and also urgently because there is some urgency attached to it.

6. Section 67U of the Act provides that in proceedings for a Recovery Order the Court may, subject to s 67V, make such Recovery Order as it thinks proper and s 67V provides that in deciding whether to make a Recovery Order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

7. The application seeks, in addition to the matter being dealt with urgently and on an ex parte basis, that a Recovery Order issue in a standard form directing the Marshal and all officers of the Australian Federal Police and State police if necessary to find and recover the children, and also that Order 4 of the final Orders being the order that relates to the children spending time with their mother be suspended pending further orders.  There is also an application for reimbursement by the Respondent mother for the father’s costs of this application.

8. So far as the best interests of the children are concerned, detailed reasons were given in the Judgment of 1 August 2014 for why it was in the children’s best interests to live with their father and for him to have sole parental responsibility for them.  It goes without saying that such an extreme order, particularly allocating sole parental responsibility to one parent to the exclusion of the other, is somewhat unusual. However, as is indicated in the Reasons for Judgment I had particular concerns about the level of disruption these children had been subject to, concerns about the parents involving the children in their ongoing conflict and of particular concern exposure to family violence which, in my view, was particularly significant in the maternal home.

9. The mother resided from time to time and often for lengthy periods of time in the maternal grandmother’s home and it would appear that there is a reasonable likelihood that this is where the children currently are.

10. I expressed the view in those Reasons that the children were more settled in the father’s home and there was particular reference to the need for the children to attend school each school day and have some stability in their lives which, in my view, was more likely to be achieved in the father’s home.

11. It is of particular concern to me that both parents had been involved in a pattern prior to the final hearing of withholding the children from each other from time to time as a way of resolving their continuous and ongoing conflict, though it would appear that the father has now desisted from this and has brought an application for a Recovery Order which is, in my view, appropriate.

12. According to the father’s affidavit, since the date of the final orders, the mother has withheld the children from him and not returned them on two occasions.  On the first occasion, earlier in October 2013 the children were due to be returned to the father on Monday 13 October 2014 but the mother failed to deliver them to the father’s home.  The father contacted the mother and made arrangements for them to be brought to a railway station at 9.30 am but the mother did not meet with the father as arranged.  According to the father’s affidavit the children were returned on Tuesday afternoon and the children told the father that the mother took them to the paternal grandmother’s residence and left them at the door.

13. The father says that he had a few days previously had a telephone conversation with the mother when she said that B had hit her and was abusive to her and that she was “sending him to my mother and she can take care of him”.

14. The more recent occasion which has caused this application to be brought is more concerning as the mother has withheld the children from the father for over a week and throughout that period they have not attended school.

15. The Respondent mother was due to return the children to the Applicant father pursuant to the Orders on Monday 17 November 2014 by delivering them to school in the morning.  The children were not delivered to school but the father was not aware of it until he received a telephone call from the Respondent mother at about 1.00pm on Monday 17 November.  According to the father’s affidavit the mother said words to the effect of “the kids are with me” when the father asked why they were not at school, he said the mother became angry and aggressive and started swearing at him over the phone.

16. The father has not had any contact with the mother since that time and has attempted telephoning her on numerous occasions on her mobile number and on the maternal grandmother’s land line and mobile numbers.  The father has also attempted to contact the mother through the maternal aunt, Ms U.

17. The school principal has confirmed that the children have not been at school for all of last week and also the last two days.

18. I accept the submission made on behalf of the Applicant that there are real concerns given the historical circumstances of this matter that the mother may be attempting to simply take matters in her own hands as she may feel aggrieved by the orders.  She may also, given the past history, attempt to claim that there is some risk of harm to the children.

19. In the parenting proceedings the mother made unfounded allegations that the father had harmed B in September 2013 and involved police and the father was ultimately charged. However, there were significant problems in relation to those allegations and the father was acquitted of the charges.  I also was not satisfied that the father had been violent towards B as alleged.  However, the result of that allegation was that the children did not see their father for approximately eight months.

20. On this occasion, the mother has not raised any complaint with the father nor has she attempted to initiate proceedings herself but seems to have continued, what I found was a pattern of disobeying Court Orders when she did not feel like complying with them.

21. So far as the best interests of the children are concerned, for the reasons given in the Reasons for Judgment, I have real concerns about the children being exposed to family violence within the maternal home as the Reasons for Judgment indicate, violence appears to be normalised within the maternal home.

22. There are also, of course, concerns about the children being deprived of their relationship with their father who is their primary caregiver.

23. I am also concerned that the children have not been attending school especially as against the background of the high level of disruption in their lives.  I also have concerns about the mother’s capacity to support the children’s relationship with their father, about her own capacity and particularly about her attitude to the responsibilities of parenthood shown in withholding the children rather than initiating proceedings if she genuinely has concerns.

24. Once again I indicate that the exposure to family violence is the matter that I have most concerns about.

25. In all of these circumstances, I am of the view that it is appropriate and in the best interests of these children for the orders sought by the father be made.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 November 2014.

Legal Associate: 

Date:  18 December 2014.