HADFIELD & HARRIS

[2017] FamCA 1170

FAMILY COURT OF AUSTRALIA

HADFIELD & HARRIS [2017] FamCA 1170

FAMILY LAW – CHILDREN – PARENTING – recovery order – where final orders precluded father’s contact but he obtained the children and maintained it was their desire to be with him and that there were problems with their relationship with their mother – on basis of evidence available, children should be returned to mother but further injunctions also granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hadfield

RESPONDENT: Mr Harris

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8871 of 2008

DATE DELIVERED: 14 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Pavone

SOLICITOR FOR THE APPLICANT: Leonard and Associates

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Weiner

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Perry Weston Lawyers

Orders

1. That the children X and Y be forthwith released to the mother from the child minding centre of the Family Court registry at Melbourne.

2. Pursuant to s 91B of the Family Law Act 1975 (Cth), the court requests the intervention of the appropriate officer of the Department of Health and Human Services for the State of Victoria relating to the welfare of the children X and Y.

3. That the father is restrained by injunction such that upon the children attending upon him, he is to immediately return them to the mother.

4. That the father pay the mother’s costs fixed in the sum of $3500 with a stay of one month for payment.

5. That the reasons this day be transcribed and be made available on the court file.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadfield & Harris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8871 of 2008

Ms Hadfield

Applicant

And

Mr Harris

Respondent

REASONS FOR JUDGMENT

1. This is an application for a recovery order.  The evidence in a recovery order is usually fairly straightforward.  If there is a Court order that a child is to live with a person, then the Court is obliged to enforce its orders if the mother/parent has possession.  In circumstance where there is an application to vary the existing orders, the Court should normally deal with the application expeditiously if there are issues associated with the welfare of the children.  The application that Mr Harris filed was on 15 March and it was listed on 10 May in Federal Circuit Court.  That court transferred the proceedings here.

2. The reasons of Judge Kelly explain why he transferred the proceeding here.  He quarantined an affidavit in support of that application by Mr Harris, and having looked at it, I remain puzzled as to why it was quarantined.  In my view, it should be on the Court file so that any person who is entitled to read the Court file will know the view Mr Harris holds.  To the extent that this is really about the children not being cared for appropriately the affidavit goes way beyond that and I can well understand why Judge Kelly was of the view that it was scandalous and that much of it was irrelevant. 

3. It has always been this Court’s position if an order is made, then the parties have to abide by it, and, to the extent that they desire to change the order based on the children’s welfare concept, they can make an application.  Subsequent to the application being filed by Mr Harris, the Department of Health and Human Services provided a report.

4. Section 67ZC of the Act requires that if a notice of risk of abuse is filed, the court must send it to the relevant state department. No specific order was made by Judge Kelly but the department considered the document it received and thought that the court should be aware of its involvement and in particular, its reports of 5 April 2017 and 27 April 2017.

5. I propose to treat the letter from the department as information under s 69ZW because the father has referred to the problems as he sees them in the mother’s household. Those matters have been investigated.

6. The Department of Health and Human Services has no concerns about the children in the mother’s household anymore than they had in the father’s household, but they were concerned about the exposure that these children here to the conflict of their parents. 

7. On 26 May 2017, the proceedings were transferred to this court because it was said that there was complexity about it that would require more than 4 days of hearing. But, on 3 July 2017, the mother filed a contravention application which has now been listed for 17 August. In the meantime, the present recovery order application was filed. I refused to deal with it on an ex parte basis and ordered the father to bring the children to the court so that the determination could be made.

8. That is how the matter is before the court today.

9. The father brought the children today and I required that he put them in the child-minding section of the registry. That meant there was no need for a recovery order. That said, the children should go home with the mother because that is what the extant order says and I am satisfied there is no evidence to justify any alteration to that absent the evidence being properly considered and tested. The court can release the children to the mother under s 67U of the Act.

10. This case has a long history predominantly in the Federal Circuit Court. Judge Bender ended the litigation in 2012 such that she excluded Mr Harris from having contact with the children at all.  He appealed to the Full Court and lost, and thus the situation is that this Court is obliged to follow its previous orders until they are changed. 

11. The Department of Health and Human Services could remove the jurisdiction of the Court by issuing a protection application and have chosen not to do so.  On that basis, there is no reason why these children should not be back with their mother.  I am concerned that there is a suggestion that these children might be voting with their feet.  That conclusion, certainly in respect of X, can be drawn from some of the things that she wrote.  There is a strong suggestion in what she says herself that what she wrote was under the guiding hand of her father.  She speaks as an advocate for her father. 

12. The Department of Health and Human Services says that there is the need for a psychologist to get involved in this case and I agree.  But at this stage, there is no reason for me to do more than invite the Department of Health and Human Services to intervene in the proceedings just in case they decide that if these children run away, they may take a protection application out, in which case the children may not be living with their father or their mother. 

13. In the hearing before Judge Kelly, the focus of the department was on the period from October 2016 until February 2017. There were certainly incidents within the family at that time but the department and police who were called, considered they did not warrant state intervention.

14. Judge Kelly had the memorandum of the department of April 2017 in which they expressed concern but again, they chose not to intervene.

15. There is undoubtedly concern as to whether these children have chosen the course they have or whether they have somehow been manipulated but the evidence does not indicate that the relationship between the children and the mother is such that there is any unacceptable risk. That conclusion is drawn from the absence of reaction by the department.

16. An application is also then made for an injunction requiring Mr Harris to return the children should they turn up on his doorstep, bearing in mind that he is not permitted to contact them. 

17. Section 68B provides the power for the court to make a restraining order relating to children. The mother’s counsel made the oral application. Once that application is “alive”, the court may make such order as it considers appropriate for the welfare of the children.

18. Curiously, he says that they do not want to do anything other than what they want to.  He does not seem to be able to get them to do things such as go to the child-minding centre of the registry.  He says that they do not want to go home with their mother, yet only some days ago, they spent an hour with her on her birthday.  All of this tends to suggest that these children are caught in a conflictual situation and they need to be removed from it. 

19. I agree with the independent children’s lawyer that the behaviour of Mr Harris in this case is not helping the situation and deserves to be criticised. 

20. Section 67V provides that in applications such as this, best interests’ principles apply. I do not intend to allow the father to defy the order. That order provides that he have no contact with the children and that order must have been made for a reason associated with the best interests of the children. The Full Court dismissed his appeal.

21. As for the immediate circumstances, the state has not removed the children nor sought to restrain or remove the court’s jurisdiction.

22. In my view, the orders should be made in terms of what the counsel for the mother suggests. 

23. Section 117 of the Family Law Act provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify departure from that principle.

24. The circumstances justify a departure from that principle where someone does not comply with a Court order. In this case, if that is the justifying circumstance, and I find it is, then the relevant provision of section 117(2A) provides that I have to take into account the financial positions of each of the parties. The father simply says that he has no money to pay, but his conduct as such would indicate that he does not care about Court orders anyway. He describes himself as a consultant. On that basis, it seems to me that it is appropriate for an order for costs to be made. The amount of costs in this case will be $3500 which is within the range of the scale in the rules and I will grant a formal stay of one month.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 July 2017.

Associate:

Date:  31 July 2017