HEDLUND & HEDLUND (No.2)
[2020] FCCA 2781
•7 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEDLUND & HEDLUND (No.2) | [2020] FCCA 2781 |
| Catchwords: FAMILY LAW – Parenting – Recovery Order – following final hearing – autistic child with intellectual disability and very challenging behavioural issues – child has history of assaulting mother and absconding to father’s house – final orders for child to live with mother and have no time and no communication with father – findings that child assaulting mother and absconding at father’s encouragement – child absconds to paternal grandparents house – paternal grandparents not parties and willing to facilitate child’s return to mother – mother does not wish to enter paternal grandparent’s property because of prior conflict – child will not leave paternal grandparents voluntarily – police will not remove child without Recovery Order – father appeared self-represented and, in effect, sought a stay of final orders and a return of the child to him – relied upon trauma implicit in recovery – no basis for stay – best interests of child to return to live with mother per final orders: Held: Stay refused and Recovery Order entered. |
| Legislation: Family Law Act 1975 (Cth), ss.67Q, 69ZL, 60CA, 65AA, 60CC, 64B, 65D, 68B, 68C, Part VII, Division 5, Division 8, Subdivision C Evidence Act 1995 (Cth), s.79 |
| Cases cited: Radar & Radar and Ors [2019] FamCAFC 227 Sheldon & Weir (No. 4) [2010] FamCA 1214 |
| Applicant: | MS HEDLUND |
| Respondent: | MR HEDLUND |
| File Number: | SYC 2529 of 2017 |
| Judgment of: | Judge B Smith |
| Hearing date: | 7 October 2020 |
| Date of Last Submission: | 7 October 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Ms McDermott |
| Solicitors for the Respondent: | Mr Hedlund in person |
ORDERS
The matter be heard on an urgent basis.
Leave be granted to serve short notice of this application.
Pursuant to section 67Q of the Family Law Act1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child X born in 2011 and to return the said child to the applicant and for that purpose 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 said child may be found.
AND THE COURT NOTES THAT:
These orders were made on an urgent basis with brief ex tempore reasons delivered to underpin the Orders.
The Australian Federal Police and Officers of the States and Territories Police Forces are requested to give the applicant such assistance as she may reasonably require when the order is served on the respondent.
IT IS NOTED that publication of this judgment under the pseudonym Hedlund & Hedlund (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2529 of 2017
| MS HEDLUND |
Applicant
And
| MR HEDLUND |
Respondent
REASONS FOR JUDGMENT
These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act in an interim application for parenting orders within Part VII of the Act.
The mother in the proceedings has filed an Application in a case lodged on the 6th and filed on 7 October 2020 to recover the child X born in 2011 from his present location with the paternal grandparents.
The father has appeared on this application. The former independent children’s lawyer was notified but has not appeared. An order, or perhaps more accurately recommendation, was made that the ICL continue to act despite final judgment having been entered but it is not known whether his appointment continues. In any event, in the circumstances I consider it appropriate to deal with the matter today.
The application arises out of my decision in the case Hedlund & Hedlund [2020] FCCA 2578 delivered less than a month ago on 14 September 2020. A decision I have just reviewed to re-familiarize myself with the matter.
That decision speaks for itself and these reasons should be read together with that decision. It is not appropriate to read large parts of that decision onto the record but I will refer to and read onto the record, or treat as being read onto the record certain key paragraphs later.
The mother’s application was supported by her affidavit sworn and filed on 6 October 2020. That affidavit, after setting out some background material, indicates that at about 9.00 am on 5 October of this year, which was two days ago, the Monday, X was allowed to play in the front yard of the property. The mother said she was reluctant to allow this but decided that it would be appropriate to do so, and she should not be criticised for that.
At paragraph 11, she said that X immediately went straight to the footpath and said words to the effect of:
I’m going to the police because you don’t like me
She said at 12:
I got into my motor vehicle and followed X slowly, keeping pace with him.
She indicated that X went to Suburb C police and went inside and she followed him in and spoke to the police there. While she was speaking with the police X ran out of the police station and she followed him to the paternal grandparents’ home. She said X refused to get into the car with her and went into his grandparents’ front door, where he was let in.
I note that given the evidence at trial about X’s conduct, and the risk of a highly adverse response to any attempt by the mother at physical restraint, I understand why the mother adopted the approach of allowing X to walk to the police station, whilst accompanying him in a vehicle, and monitoring his safety to provide him with freedom whilst ensuring his safety and having a motor vehicle available, so that if he chose to come home or if he got tired she could easily take him home.
I also note that no criticism is made by the mother of the fact that the paternal grandparents allowed X to enter their house.
A review of the judgment which has refreshed my memory as to the underling material makes it clear that X’s responses can be extreme and as I have said the mother does not criticise the grandparents for allowing X to enter their home.
The mother said she did not want any trouble with the Hedlund family and I recall there was evidence at hearing about some prior conflicts between the mother and parental grandparents, and so she called the police to facilitate X’s return. And, again, I do not think any criticism could arise for either the grandparents or the mother in this regard.
The police arrived and she says that the police spent about half an hour in the property and then said words to her to the effect that:
X’s grandparents are supportive of returning him to you, but X is refusing to go. We can’t make him.
She said that at one point the police convinced X to come outside and that X then refused to get into her car and ran back to his paternal grandparents’ house.
The covering letter for urgency dated 6 October 2020, which caused a registrar to list this matter before me on an urgent basis, which I accept as a submission and I will mark that MFI1 and treat it as an aide-memoire, indicates:
The police would not take the child X from the grandparents’ home without a Recovery Order.
I note that is consistent with what one anticipates in a Family Law proceeding.
The mother says that the police told her that they would ask the grandparents to take X to his appointment with Dr L, who I note is X’s treating psychiatrist, the following morning but when the mother arrived at Dr L’s she was told that the paternal grandmother had called Dr L’s office and said they would not be bringing X to the appointment. It is not known why X was not brought, but there are a range of possible explanations, including possibly that X was refusing to leave and the grandparents did not wish to engage in a physical dispute with him.
Now, of course, it is important to note that the paternal grandparents were not parties to the proceedings. The paternal grandparents did not seek to have any orders in relation to X. The paternal grandparents have indicated that they are content for X to return to the mother. The paternal grandparents do not have any parental responsibility. No one sought orders that X would live with the paternal grandparents. It is merely where X has gone and, whilst they are happy to facilitate his return the mother, for reasons I understand she was reluctant to enter their premises because there were issues between them, and the police were not willing to act without the recovery order that is now sought.
The father, Mr Hedlund, has become aware of the circumstances, unsurprisingly, presumably told by his parents, what had occurred, and the following day, Tuesday 6 October 2020, at 2.43 pm he sent an email to the mother’s solicitor. And I will note before I read that onto the record that I made section 68B and C orders to prevent Mr Hedlund from contacting the children, including X, because of the findings I made regarding his conduct which I will refer to later.
Mr Hedlund said in that email consistent with his position today:
It has come to my attention that the dangerously unsafe situation of X living with your client has continued to escalate. I have been advised by his paternal grandparents that X turned up on their doorstep yesterday, dirty, sunburnt and covered in bruises and other marks. He told them that your client told him to leave the house after a fight, so he went to the local Police Station on foot and complained about your client, then walked to his paternal grandparents. I understand that he remains in their care, and that he is anxious to see me.
I have been advised by X’s paternal grandparents that they have heard nothing from your client and that they have tried to contact the Independent Children’s Lawyer for guidance without success. At this time, it appears he is residing with them for his safety with the implied approval of your client.
Appeal and Application in a Case paperwork is being filed at the moment, with the Application asking for the urgent removal of X from your clients care. In the meantime, please provide the required written confirmation from your client that I am allowed contact with X to deal with the nuances of the protection order Judge Smith saw fit to grant. I fear that without seeing him, he will continue to abscond and needlessly place him in danger, even from the safer location where he is now residing.
I look forward to hearing from you urgently to remove needless anxiety for X.
The mother’s solicitor replied about 20 minutes later advising that a recovery order was being sought and that the mother did not agree to a breach or change of the orders of 14 September 2020.
The matter was only argued shortly before me. The mother’s position is that all issues were considered at a contested trial. Orders were made and they should be given effect.
There is realistically no basis upon which X would be allowed to live with third party grandparents who have not taken part in the proceedings, and who the Court knows little about, and the issue is whether he should then live with the mother or the father, and given my findings at trial the mother says that the child should live with the mother and the orders should be given effect.
The father’s position, consistent with what he indicated in his email, is that my judgment was fundamentally flawed and that an appeal is on foot, and the child should not be recovered.
Mr Hedlund cited Radar & Radar and Ors [2019] FamCAFC 227. I accept that any child recovery necessarily involves the possibility, if not the likelihood, of trauma to the child. However, the circumstances following a final hearing, where the final orders are not stayed, and where a very clear risk was assessed and found if the child is in one parents’ care or has contact with that parent, is a very difficult situation.
Nor do I think the fact that X has gone to the grandparents rather than the father makes a substantial difference, where they are not people with parental responsibility. They took no part in the proceedings and so it is clearly not appropriate for X to be allowed to reside with these people, and they have indicated they are happy to facilitate X leaving in a way which is appropriate.
So the reality is the issue is whether X should be returned to his mother, as per the current orders, or to the father.
I note that a recovery order is a form of parenting order as defined in part VII, Division 5, and I note section 64B and the Court’s power to make orders and see section 65D, and also, of course, the provisions of division 8, subdivision C regarding the recovery of children.
The paramount consideration for me today is, as always, the best interests of X. I note section 60CA and section 65AA. I would also note the provisions of section 60CC.
I will not seek to go through these matters now, as all of these issues were considered in detail in my primary decision after a fully contested hearing, and the orders made were that X should live with his mother and have no time or contact with his father.
In oral submissions Mr Hedlund referred to the fact that the family consultant, Ms M, said that X should live with him, and certainly in one of her reports that was her recommendation, but that was not her final position in her oral evidence if I found that the reason that X was assaulting his mother and absconding was that this is what Mr Hedlund was telling X to do. Further, Ms M herself considered that that fact was probably the case. So it is not correct to say that Ms M’s opinion was that X should live with the father.
To the contrary she believed that the father was telling X to abscond and putting him at risk, and on that basis her opinion was that X should live with the mother.
I also note that Dr L, treating psychiatrist, believed that the reason X was absconding and assaulting the mother, putting X at grave risk, was because this is what the father was telling him to do. I note there was other documentary evidence from other people indicating that this is what X was saying he was being told. And I note that as set out in my judgment, I considered the evidence that this is what was occurring to be overwhelming.
And I note the summary at paragraphs 16 to 22 of my judgment which I will treat as being read onto the record for the purposes of this judgment to summarise the issues. I note, of course, that paragraphs 16 to 22 were merely a summary and that I have had regard to the specifics of my finding.
I also note that Dr L and Ms M both thought it would take a period of time without contact with the father, or his influence, to allow X to settle and this behaviour to subside.
The father has submitted that the fact it is still going on which shows that they were wrong, but in that regard but the decision was delivered less than a month ago.
On any view of the expert evidence it was going to take some period of time for this to settle, and even though Ms M thought it would take longer than Dr L, my finding was that ultimately it would settle.
Given the finding I made about the father’s conduct it would be inappropriate for X to live with him given, given his, as Ms M described it:
…callous disregard for X’s physical safety and emotional needs.
Although there is no stay application before me, given Mr Hedlund is unrepresented and, in effect, that is what I understand he is seeking to argue, I have considered the relevant principles as summarised in Sheldon & Weir (No. 4) [2010] FamCA 1214 by her Honour Ryan J.
The authorities make it plain that a stay is not ordered as a matter of right, it is a discretion, and the discretion will depend upon the circumstances of a particular case.
The onus to establish a proper basis for a stay is on the applicant for the stay who, in effect, I am treating as Mr Hedlund. No special exceptional circumstances must arise. The mere filing of an appeal is not sufficient to ground a stay. I must consider whether the risk of an appeal may be rendered nugatory if the stay is not granted, and if so that will be a substantial factor in determining whether it is appropriate to grant a stay, but I do not see that enforcing the existing orders will impact Mr Hedlund’s rights on an appeal.
It seems to me that what has occurred is entirely consistent with my decision, which was based upon an acceptance of the well-reasoned expert opinions both of the family consultant, Ms M, and of Dr L who, as I indicated in my judgment, both have relevant expertise within section 79 of the Evidence Act 1995 (Cth) in terms of child development and, in particular, on the likelihood that X’s conduct has been a consequence of the father’s conduct.
The father made a submission along the lines of:
Even if I convinced him to run away from the mother he is at no risk with me.
I do not find that a persuasive argument. In effect, he is saying that X will be better off in the long run, and I must look both at the short and long run, but he would be better off not in the short but in the long run by being moved to live with someone who has treated his safety with callous indifference in order to achieve his own goals. I do not accept that that is correct.
As I have indicated, my decision was made upon, amongst other matters including findings as to family violence, the acceptance of what I consider the well-reasoned opinions of both the family consultant and of X’s treating psychiatrist as to the likelihood that his conduct was caused by the father’s conduct, and that if that was occurring X’s best interests would be served by living with the mother and by not having any contact with the father so that the impetus for X’s conduct was removed.
I also accepted that it was likely that X’s conduct would improve over time, and I see no reason to find because this event has occurred that that is inconsistent with my findings.
Consequently, I am satisfied that the orders I made should continue and should be given effect and no stay granted.
I note that the issue is complicated by X’s conditions.
X has autism spectrum disorder and he has also been diagnosed with an intellectual disability, he has behavioural problems and delays in development, and he is displaying still the major behavioural problems at the moment with his running away that he has displayed previously.
I note that there were descriptions of his outbursts, however, looking at the long run, unfortunately, if the only way to give effect to these orders to return X from the grandparents to his mother is to issue a recovery order, because of X’s behavioural problems, so that X may return to live with her and continue seeing Dr L, which I think is extremely important, and to put time between him and the father’s influence then, unfortunately, although I have no doubt that this recovery will be traumatic for X, I am comfortably satisfied that it is in X’s best interests for this recovery order to be made.
I note that it would, of course, be not only in X’s interests, but in the interests of the grandparents and the mother, if this could be done during the daytime, and not late at night or in the dark small hours of the morning.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Date: 12 October 2020
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