HORNE & HORNE

[2019] FCCA 1063

FEDERAL CIRCUIT COURT OF AUSTRALIA

HORNE & HORNE [2019] FCCA 1063

Catchwords:
FAMILY LAW – Ex parte application – urgent hearing – child recovery orders – injunction – independent children’s lawyer.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS HORNE

Respondent: MR HORNE

File Number: ADC 310 of 2016

Judgment of: Judge Young

Hearing date: 5 April 2019

Date of Last Submission: 5 April 2019

Delivered at: Darwin

Delivered on: 5 April 2019

REPRESENTATION

Counsel for the Applicant: Ms Gilbert

Solicitors for the Applicant: Gilbert & Partners

Counsel for the Respondent: Ex Parte Application

Solicitors for the Respondent: Ex Parte Application

EX PARTE ORDER UNTIL FURTHER ORDER:

1. The child [X] born … 2014 live with the mother.

2. The mother is permitted and authorised to attend at the child’s school, School A, and collect the child at any time.

3. The father is restrained and an injunction is granted restraining him from in any way interfering with the Order made this day that the child be delivered into the mother’s care.

4. Pursuant to Section 68L of the Family Law Act 1975 THAT an independent children’s lawyer be appointed to represent the interests of the child [X] born … 2014.

5. To facilitate such appointment the parties respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of the date hereof and that the independent child/children’s lawyer use his or her best endeavours to be in a position to make submissions to the court on the adjourned date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 310 of 2016

MS HORNE

Applicant

And

MR HORNE

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 an ex parte application for a recovery order for a child, [X], who is four and a half years old. The application was filed on 28 March 2019 and an urgent hearing sought. The matter came before me on 29 March while I was sitting in Alice Springs with Ms Gilbert appearing for the applicant by telephone from Adelaide. The mother’s affidavit in support of the application refers to an assault on her on 7 February 2019 by the father where she was thrown against a bed, punched and suffered a laceration. This was alleged to have occurred in front of the child. She was subsequently hospitalised and the father has been charged with assault and an intervention order made with the mother as the protected person. The child is not a protected person in that order.

3. The mother’s affidavit in support says at paragraph 18 as follows:

   Once discharged from hospital, I moved into a domestic violence shelter. However, I have now waiting for housing.

   That is obviously an error and I take it to read “However, I am now waiting for housing.”

   As a result of this, I feel more able to undertake to have the child returned to my care as I did not want him living in a shelter. I know that if I ask the father to return the child to me he will refuse and I fear he may harm the child to spite me.

   Paragraph 20 states that:

   The child attends at School A. I wanted to go and get him but was advised the best way was to get an order from the court.

4. There is, as far as I am aware, no existing order about the child, so the mother, of course, has at all times been entitled to go to the kindergarten and remove the child. Whether, of course, the kindergarten authorities would countenance that is another matter but as a legal proposition she is entitled to do that.

5. This matter has been in my docket in the past. I see there was an application filed by the father in February 2016. At that time the parties had separated following another incident of family violence and there are references to this incident in the more recent affidavit material from the mother. The father during an altercation cut the mother’s hair with scissors and, when she left the house and fled outside, pushed her down in the street. That incident was said to have been witnessed by independent persons and the father was charged with aggravated assault as a result of that episode. I recall that I was subsequently told the parties had reconciled and proceedings were discontinued.

6. In the affidavit material that was filed the mother alleged that the child had been slapped in the face by the father a number of times in about 2016 after the parties had reconciled and resumed living together. Ms Gilbert told me that they had not “reconciled” but that they had simply “resumed living together in the same house”. Whether there is a difference I am not sure. In any event, there has been at least one subsequent episode of family violence alleged and, on the face of it, a serious one. The mother left the former matrimonial home on or about 7 February 2019 and commenced a proceeding on 28 March seeking an ex parte recovery order.

7. No letter has been written by the mother’s solicitor prior to the making of this application seeking the return of the child. I asked about that and was simply told by Ms Gilbert that she had no instructions to write such a letter and there has been no section 60I certificate obtained. Despite that I am satisfied I do have jurisdiction because there is some urgency about the matter.

8. On considering the affidavit of the mother filed on 28 March I told counsel for the mother that I was not prepared to make an ex parte order on the material before me because I was not satisfied that such an order was in the best interest of the child, that is, dispensing with notice of the making of the order and authorising the police to recover the child, using reasonable force if necessary. Obviously, an ex parte order, that is, an order without notice, authorising the machinery of the state to use reasonable force against a person in circumstances where they have had no notice that that may be about to happen is, in my view, a very serious application to be made and one that should only be made if the material justifies it. I did, however, on 29 March, make an Airport Watch List order.

9. Counsel for the mother sought an adjournment in order to file further material. The matter was adjourned to yesterday before me and further material was filed. The mother filed a further affidavit on 1 April 2019. That affidavit repeats the allegation that the father had hit the child in 2015 or 2016 and asserted that that was reported to the South Australian Police. There is no evidence of any report to the Department of Child Protection or that the Department or the police followed the matter up. Subsequently, the Court received a response from Department to a notice of risk which made it clear that there was no investigation of those allegations, or the specific allegation, concerning the child.

10. The mother also said in the affidavit of 1 April that she was concerned that if she reports assaults on her, and she alleged that there had been a number of assaults during the period the parties resumed living together, the father may kill the child. The material on which I am asked to accept that fear may be reasonable is that there were allegations by the mother of coercive and controlling behaviour throughout the marriage, including assaults. Specifically in relation to the child, she has alleged that the father had hit the child on the child’s face, pushed the child into furniture, held the child upside down so as to cause him distress and had covered the child’s mouth with his own hand, presumably while the child was distressed. When any of those events occurred is not stated in the affidavit. 

11. Paragraph 23 of that affidavit says:

    I have attempted to make arrangements with the father, through the father’s family, to have the child returned to me ...

    There is some typographical error there:

    [but] have not made any progress.

12. The court has now received, yesterday in fact, a response from the Department of Child Protection South Australia to the notice of risk. The response details a series of notifications to the Department, all of which, with the exception of one, were closed with no action taken. The exception was a notification on 1 March resulting from the alleged assault on the mother on 7 February and the consequences of that. I will return to that in a moment.

13. I will briefly survey the notifications that are mentioned in the response to the notice of risk from the Department of Child Protection. On 7 November 2015 there is a notification of an assault on the mother. There is no report of an assault or slapping of the child at that point and no action was taken. On 11 February 2016 there is a notification of a verbal altercation between the father and the mother and the child was upset and the father slapped the child on the face and yelled at him. On the same date there is an allegation that the father dislocated the child’s shoulder and slapped the child’s face. I asked counsel for the mother about the notification about the dislocated shoulder yesterday. She told me, after taking instructions, that the child had actually dislocated an elbow. There is no mention of that event in either of the mother’s affidavits. There is no evidence beyond the notification and it is difficult to know precisely what to make of that allegation.

14. Those matters appear to have predated the matter coming before me in 2016 and while I do not recall that specific allegation in the earlier proceedings, I assume it was made before me, though I do not recall any assessment of the allegation, its truth or otherwise. Of course, if it was made in proceedings, then the necessity for resolving the question of what had happened was removed when I was informed that the parties had reconciled and the proceedings discontinued.

15. On 10 October 2016, while the first set of proceedings were on foot, there was a report that the father had broken into the domestic violence accommodation and stolen the mother’s phone and court documents. It was noted in that notification that the mother wished to reconcile with the father. On 9 December 2016 it was notified that the mother had apparently cut off contact with her domestic violence support workers and volunteers who were providing support for her, presumably with a view to carry into effect her reconciliation with the father.

16. The next report is on 8 February, a little more than two years later, following the alleged assault on 7 February 2019. There are a number of separate notifiers concerned with that event. It is not clear to me who they are.  I do not have access to the Department of Child Protection file at the moment but only the response to notice of risk but, in any event, there are five separate notifications arising out of the alleged assault on 7 February.

17. One notifier, described as the “third notifier”, said that the child was asleep at the time of the assault and had not witnessed that assault. It was said that the child had been placed with the paternal uncle while the mother went into domestic violence accommodation. It was reported that the mother had reported the father had hit the child in the past.

18. The person described as the “second notifier” reported that on 7 February 2019 the father assaulted the mother in front of [X] who was present and witnessed the entire assault including several blows to the head, the father dragging the mother by the hair, the father slamming the mother’s head into a door, the mother bleeding from the head and that the father “panicked” and called police but not before threatening to kill the mother if she disclosed what occurred.

19. According to the notification the mother was taken to Hospital. The mother suffered a cut to the head, bruising to the leg, back and hands. The mother was taken to a DV shelter and [X] was left in the care of the father. The mother was in the same DV shelter in 2015 after another serious assault where the father assaulted the mother then attacked her with a knife and hacked her hair off before the police arrived. I assume, and I interpolate here, that this is a reference to the assault that was alleged in 2015 about which I read affidavit material. My recollection of the material is that the assault consisted of the father cutting the mother’s hair with scissors. I do not recall evidence of a knife attack but my recollection of that material is not perfect. To return to the notification, the mother fled and the father was later charged.

20. To interpolate and referring to the police file, as a result of that assault the father was convicted of three counts on 15 February 2017. He was convicted of one count of “aggravated assault (no weapon) against child or spouse”. It is not in issue that the aggravating factor was that it was an assault on his spouse. There was a count of contravening an intervention order on 3 May 2016 and also a conviction for failing to comply with a bail agreement on the same date. I assume they are intervention orders resulting from the assault in November 2015.

21. The father was placed on a good behaviour bond in respect of all of those offences. In my view, that is inconsistent with any allegation, if it was to be read as an allegation, contained in the DCPs response to the notice of risk that the mother was attacked with a knife. That appears to be incorrect. 

22. To return to the notification, it is said the mother fled and the father located her, broke into her emergency housing and made her return to the home. The mother had been back in the home with the father, however “living separated” since 2016. The mother has left [X] in the father’s care as she appears frightened that if she takes him the father will find her again. The mother insists that [X] is better off with the father as the father is taking him to pre-school.

23. The “first notifier” indicates that [X] has not attended pre-school since the DV assault. The mother believes that [X] is safe because the family is involved and know what is going on in terms of the violence. The mother acknowledged that the DV occurs in front of [X] and that the father assaulted [X] in 2015. The notifier did not have any further information in relation to this. The mother stated that Mr B is supporting the father by taking care of [X] and taking him to pre-school. The mother intends on taking [X] back into her care when she has housing. The father has been charged with aggravated assault and a “DAIO”, I assume that is an interim intervention order, was issued. The mother is asking to have the charges dropped and the DAIO revoked as she “doesn’t want any issues”. More recently, the father has threatened to throw acid at the mother and the mother asked the notifier how easy it was for someone to get a hold of acid.  The mother appears genuinely fearful that the father may acquire acid and use it on her. The notifier has been in concern with “FVIS”. I am told it refers to Family Violence Services at Suburb C Police Station. The case is assigned to a senior sergeant and recorded as high risk. 

24. There are other entries under that date but these confirm, essentially, that the mother was seeking to have the charges dropped. The note is consistent with paragraph 18 and paragraph 20 of the mother’s affidavit where she said that she had left [X] with the father or the paternal uncle whilst she was finding housing, a period of some seven weeks. That appears to me to be inconsistent with how this case was put to me last week and yesterday which is that an urgent ex parte order is necessary because of the risk that the father will harm the child. 

25. I do not accept that the material before me supports that allegation. Indeed, I am satisfied that the material, including the mother’s own affidavit material, is inconsistent with that assertion. Yesterday I asked counsel for the mother to obtain instructions about the passage that I have read from the DCP report, particularly the passages which indicate that the mother insisted that the child was better off with the father as he is taken to pre-school. Counsel for the mother said that she was unable to get intelligible instructions through the interpreter yesterday. So it has not been responded to.

26. The material suggests to me that the mother has made a more or less deliberate choice to leave the child with the father for the past seven weeks or so while she obtained housing. Apparently she now has housing. I am not, for one minute, doubting that she may be afraid of the father. In fact, I expect she is. The evidence that the father committed an aggravated assault on the mother is very strong. The fact that she wants, according to notifiers, to withdraw the charges does not undermine that at all. It is a well-known pattern with women subject to recurring family violence.

27. In the circumstances I do not propose to make an ex parte recovery order. I am not satisfied that that is in the best interest of the child at this point.  However, I am satisfied that the mother has been the primary carer for the child and that the child, until further order, should live with the mother. I will make an ex parte order that the mother may collect the child from his kindergarten. I will also make an order for the appointment of an independent children’s lawyer.

28. I will adjourn the matter to 16 May 2019. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 2 May 2019