Hurley and Lomu

[2016] FamCA 774

FAMILY COURT OF AUSTRALIA

HURLEY & LOMU [2016] FamCA 774

FAMILY LAW – CHILDREN – Ex parte – Recovery order application by mother – Application granted in respect of recovery order – Interim orders for sole parental responsibility to mother and child to live with mother .

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 67Q, 67U, 67V
Family Law Rules 2004 (Cth) r 5.12

Goode & Goode (2006) FamCA 1346

APPLICANT: Ms Hurley

RESPONDENT: Mr Lomu

FILE NUMBER: PAC 4278 of 2016

DATE DELIVERED: 13 September 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 12 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Ramjas

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. Leave is granted to the Applicant Mother for her Application to proceed on an ex-parte basis.

2. I dispense with any rules so as to facilitate the matter being heard today.

3. Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Polices Forces of all the States and Territories of Australia requiring them to find and recover the child B (female) born … 2013 and to return/deliver 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.

4. Pending further order, the Applicant mother have sole parental responsibility for the child.

5. Pending further order, the child live with the applicant mother provided that the mother resides substantially at the home of the maternal grandmother at C Street, D Town New South Wales ...

6. Pending further order, the child will spend no time with the Respondent father unless agreed by the mother and father in writing including sms and email communication.

7. The mother effect personal service of the Initiating Application, Affidavit and Notice of Risk filed 9 September 2016 together with a sealed copy of the orders made today as soon as practicable upon the Respondent Father.

8. The proceedings are transferred to the Federal Circuit Court Canberra at 10am on 12 December 2016.

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 Hurley & Lomu 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 PARRAMATTA

FILE NUMBER: PAC 4278  of 2016

Ms Hurley

Applicant

And

Mr Lomu

Respondent

REASONS FOR JUDGMENT

1. The applicant mother seeks orders to facilitate the return of the subject child B born in 2013 to her care.

2. The matter was before the Court on the 12 September 2016. Orders were made on the mother’s application. Reasons for judgment were not able to be delivered extempore to the exigencies of a busy duty list that day.

3. These are those reasons.

4. The mother seeks to proceed on an ex parte basis for reasons that will become apparent.

5. In support of her application the mother relies upon:

   a)her initiating application filed on 9^th of September 2016,

   b)her affidavit filed on 9^th of September 2016,

   c)the Notice of Child Abuse filed by her on 9 September 2016.

6. The mother seeks orders in her application that in summary provide for:

   a)a recovery order to issue to facilitate the return of the child to her care,

   b)that pending further order the mother have sole parental responsibility for the child,

   c)that pending further order the child live with the mother.

Context

1. The mother was born in 1997 and is presently 19 years of age. The father was born on in 1995 and is presently 23 years of age.

2. The subject child is the only child of their relationship.

3. The mother and father separated in 2014.

4. Since separation the father has spent only intermittent time with the child mostly by reason of him spending periods of imprisonment.

5. The child since birth has lived in the primary care of the mother.

6. The child has spent some nights away from the mother with the father but these have been intermittent.

7. On 27 July 2016 the child commenced to be cared for on an interim basis with the maternal grandmother who resides at D Town, NSW, a small town a short distance south of E Town in southern New South Wales.

8. The child commenced to stay with the maternal grandmother to facilitate the mother seeking accommodation in Sydney for herself and the child. The mother was unable to do so and had planned to commence living with the maternal grandmother at D Town as of 9 September 2016. In the intervening few weeks the mother has spoken to the child daily and travelled to D Town each week to spend time with the child.

9. The father has demonstrated some interest in the child over the last 2 months and on 29 August 2016 asked if the child could be with him on the Father’s Day (4 September) weekend from Saturday morning until Monday morning. For that purpose the father informed the mother that he would be staying at his foster mother’s home in F Town. The mother was aware that the father’s foster mother had previously worked with the Department of Family and Community Services and was of the view that her home would be a safe environment for the child.

10. Subsequent arrangements were made for the child to be returned to the mother in Sydney on either Thursday afternoon or Friday morning after Father’s Day.

11. On the afternoon of Thursday, 8 September 2016 the mother attempted to telephone the father to make arrangements for the child to be returned to the mothers care. The paternal grandfather was contacted about 515 p.m. and informed the mother that the child would not be returned to her care as concerns were held for the child’s welfare. No particular concerns were given to the mother.

12. The mother has been unable to contact the father and she attended at G Town police station to be told by a police officer that she required a family Law order to procure the return of the child to her care. Subsequently the mother requested that the police undertake a welfare check in relation to the child and it was reported to the mother that they were unable to do so as they could not determine the unit number of the property allegedly occupied by the father.

13. The mother thereafter sought advice at this Registry from the duty solicitor who it appears assisted the mother in preparation of her present application.

14. The mother expresses significant concern as to the child remaining in the father’s care as the father has had significant ongoing involvement with the police and spent time in custody for various offences. The mother asserts that those offences include access into murder, drugs charges, assault, break and enter and armed robbery.

15. There has previously been a domestic violence order made for the protection of the mother and that order has expired post separation. However subsequent to circumstances that led to that domestic violence order the father the mother asserts was taken by the police to the mental health ward at H Town Hospital.

16. The father was most recently released from custody in late August 2016. The mother believes that the father is presently on bail in respect to charges of affray and assault occasioning actual bodily harm that require him to report Monday to Friday to F Town police station.

17. The mother also asserts that the father is involved in selling drugs.

18. The mother’s proposal is that she will return to her mother’s home at D Town. She is agreeable to an order that ensures that she does so at least in the interim.

Discussion

1. It is clear that urgent orders are necessary, not only in that the mother has been the primary carer of the child, but there are significant and concerning allegations relating to the father contained in the mother’s affidavit.

2. The requirements in relation to an ex-parte interim application are set out in the provisions of the Family Law Rules 2004 (Cth), in particular, Rule 5.12. The Court is satisfied that it is appropriate to consider the matter on an ex-parte and urgent basis.

3. The primary urgent application is the recovery application relating to the child.  The provisions in relation to recovery are set out in section 67U of the Act, which empowers the Court to make such recovery order as the Court sees proper.

4. The determination as to whether to make a recovery order is governed by the provisions of section 67V, which relevantly provides that when deciding whether to make a recovery order in relation to a child, the Court must have regard to the best interest of the child as the paramount consideration. 

5. The best interests of the children, the subject of proceedings before this Court, are set out in the provisions of section 60CC of the Act. That section sets out the primary and additional considerations in respect of which the Court is required to have regard to.

6. The relevant principles in relation to parenting in interim proceedings are well settled in Goode & Goode (2006) FamCA 1346.

7. Section 60B of the Act outlines the objects and principles underlying Part VII of the legislation. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. 

8. Section 60CC outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child. 

9. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility.

10. That presumption does not apply where there are reasonable grounds to believe that a parent is engaged in abuse of the child or family violence, or whether the Court considers, in the circumstance, it is not appropriate for the presumption to be applied or the Court is not satisfied that an order for equal shared parental responsibility would not be in the child’s best interest. 

11. In all of the circumstances of this matter, as detailed above, the Court is satisfied it would not be appropriate for the presumption to be applied and accordingly, the orders to be made by the Court fall to be determined by reason of a consideration of the best interest factors set out in section 60CC of the Act.

12. The determination of this application can be resolved by a simple reference to the provisions of section 60CC (2) of the Act; that is, the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  Subsection (2A) of that section was inserted by reason of the amendments to the Act in 2012 and the protective concerns in section 60CC (2)(b) are to be given greater weight in the context of best interest considerations.

13. This is a circumstance where the subject child is not yet three years of age, has primarily been in the primary care of the mother, and has been taken from the mother in circumstances more fully set out in her affidavit. 

14. The mother is not aware as to the whereabouts of the child or the father and it is to be inferred that the child would be significantly distressed or concerned as a consequence of separation for the mother, thus exposing the child to psychological harm and the prospect of harm in the care of the father by reason of his violent and criminal history.

15. Regard has been had to the other considerations and where relevant they support the child being returned to the mother’s care.

16. Orders will be made as sought by the mother. 

17. Otherwise it is appropriate that these proceedings that relate only to parenting and are not complex now be transferred to the Federal Circuit Court of Australia, Canberra on a date to be fixed. That Registry is the closest registry to where the mother is to reside.

18. These Orders have been made in the absence of the husband and he is at liberty to make such application to the Court on short notice, as he may be advised.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 September 2016.

Associate

Date:  13 September 2016