HABERLAND & WARDLOW

[2020] FCCA 1594

FEDERAL CIRCUIT COURT OF AUSTRALIA

HABERLAND & WARDLOW [2020] FCCA 1594

Catchwords:
FAMILY LAW – Parenting – application by mother for a recovery order – whether unacceptable risk of harm to the children – where parties and children live or have lived in a remote community – where mother left the community five or six months ago for medical reason – where mother now resides in different community – where mother alleges history of family violence – where children appear to be living with the paternal grandmother in her household – not satisfied there is an unacceptable risk of harm in the short term.

Legislation:

Family Law Act 1975 (Cth), s.11F

Applicant: MS HABERLAND

Respondent: MR WARDLOW

File Number: DNC 237 of 2020

Judgment of: Judge Young

Hearing date: 26 May 2020

Date of Last Submission: 26 May 2020

Delivered at: Darwin

Delivered on: 26 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Papp

Solicitors for the Applicant: North Australian Aboriginal Family Legal Service

Counsel for the Respondent: Ms Coetzee (as duty lawyer)

Solicitors for the Respondent: Northern Territory Legal Aid

ORDERS

BY CONSENT UNTIL FURTHER ORDER:

1. That the children spend the winter 2020 school holidays with the mother from after the child inclusive conference held at the Federal Circuit Court in Darwin on 24 June 2020, with changeover in the Court building, returning the children to the father at Suburb A Police Station at noon Tuesday 14 July 2020.

2. That the respondent file and serve a Response, affidavit and notice of risk by close of business on 24 June 2020.

3. That pursuant to s.11F of the Family Law Act 1975, the parties and the children X born in 2012, Y born in 2015 and Z born in 2017 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 24 June 2020 at 9.00am with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance NOTING that the family consultant is to have discretion as to whether the children and the parties attend in person or telephone.

4. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

5. That pursuant to section 69ZW of the Family Law Act 1975 Territory Families provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising or relating to the children X born in 2012, Y born in 2015 and Z born in 2017;

   (b)any assessments or investigations into such abuse allegations;

   (c)the outcome or findings of any such assessments and investigations; and

   (d)copies of any reports received by Department for child Protection Territory Families in the course of investigating any such notifications.

6. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon Territory Families without the Courts leave.

7. That the matter be adjourned to 20 July 2020 at 10.00am for interim hearing in relation to a recovery order.

8. That the parties be at liberty to inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) be at liberty to inspect and photocopy the document produced by Territory Families in response to the Notice of Risk filed in these proceedings NOTING THAT this information is confidential and cannot be disclosed to any other person or entity without an Order of this Court and NOTING penalties may apply pursuant to s.121 of the Family Law Act 1975 if the report is printed or published other than as directed in these proceedings

9. That ending further order, the parties’ legal representatives are restrained from providing a copy of the document to any other person.

IT IS NOTED that publication of this judgment under the pseudonym Haberland & Wardlow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 237 of 2020

MS HABERLAND

Applicant

And

MR WARDLOW

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is the first return of an application for recovery order made by the mother of three children, who are aged seven, five and three.  The background is as follows.  The parties separated effectively in December 2019.  The mother and father and the children have lived in Town B, which is a remote community in the Northern Territory.

3. The mother required some complex medical treatment I was told, open-heart surgery, or heart surgery at least.  She left that community in December 2019 and has not actually returned to the community since then.  She has, in fact, decided to go and live in Town C, which is another remote community but well away from Town B.  When she went to hospital she left the children in the care of the father and now, some five or six months later, she comes to the Court seeking a recovery order. 

4. I am not convinced that it is appropriate to make a recovery order in these circumstances particularly as the children were left, to a degree at least, voluntarily with the father some months ago.  It appears that the children have lived in that community all their lives.  It appears to be the case, from the instructions of Ms Coetzee, counsel for the father, that the children are living in the paternal grandmother’s household and not the father’s household.  Ms Coetzee said her instructions were that the children had spent considerable time with the paternal grandmother.

5. This is not a case where the father or a parent has taken children unilaterally which is more commonly the situation where a recovery order is made.  The basis of the recovery order essentially is that the children have been, according to the mother, cared for primarily by her and that she fears for the safety of the children because she was subjected to repeated incidents of family violence when the parties were together. 

6. I might say there is corroborative evidence that the mother’s assertions about being the victim of serious family violence from the father are true.  There is in the material a statutory declaration from a police officer who investigated a report of family violence by the father against the mother in 2018.  The police officer noticed her to have a bruise, a minor bruise as he described it, over her eye.  The mother was very unwilling to make a complaint. 

7. The police officer also said that when he served process, which I think was an application for an intervention order on the father, the father was hostile, aggressive and, indeed, offered to fight the police officer.  There is also an allegation about the father being wounded in some fighting that went on in that community but the evidence for that is at the moment unclear. 

8. The real issue is that given the allegations of family violence, some of which are corroborated, whether I should simply accept that there is an unacceptable risk of harm leaving the children where they are, and on what is in effect about six days’ notice to the father, authorise the police to use reasonable force to remove the children from their present circumstances.

9. I am not satisfied that is an appropriate order in all the circumstances.  I am not satisfied that there is a non-acceptable risk of harm to the children, certainly in the short term.  This is partly because the mother has left the children where they are for the past few months.  It may be that she is unable due to her health problems to effectively take action on the matter but, nevertheless, the children have been in Town B, apparently living with the paternal grandmother or in her household and spending time with their father for some months.  I am not satisfied there is an unacceptable risk of harm in the short term in leaving the children where they are.

10. I think that the more appropriate course is for this court to make an order for the preparation of a section 11F Child Inclusive Memorandum to get a better picture of the issues and indeed to give the father an opportunity to respond to the allegations made against him, which I think is important in this case.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 16 June 2020