Isaac and Isaac

[2017] FCCA 495

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISAAC & ISAAC [2017] FCCA 495

Catchwords:
FAMILY LAW – Exparte – recovery and watch list order.

Legislation:

Family Law Act 1975, ss.67U, 68L(2), 68Q

Applicant: MS ISAAC

Respondent: MR ISAAC

File Number: MLC 2353 of 2017

Judgment of: Judge Harland

Hearing date: 10 March 2017

Date of Last Submission: 10 March 2017

Delivered at: Melbourne

Delivered on: 10 March 2017

REPRESENTATION

The Applicant: Ms Keenan appearing amicus curiae

The Respondent: No Appearance

ORDERS

1. That the applicant have leave to proceed ex parte.

2. Until further order, the children X born (omitted) 2014, Y born (omitted) 2009, and Z born (omitted) 2008 (“the children”) live with the applicant.

3. The father spend no time with the children pending the matter returning to court.

4. Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to:

   (a)find and recover the children X born (omitted) 2014, Y born (omitted) 2009, and Z born (omitted) 2008 and to deliver the children to the mother MS ISAAC at (omitted) in the State of Victoria, or such other place as the mother and the person effecting such recovery deems to be appropriate;

   (b)to stop and search any, vehicle, vessel or aircraft; and

   (c)to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.

5. The applicant immediately notify the court on ph:(omitted) upon X born (omitted) 2014, Y born (omitted) 2009, and Z born (omitted) 2008 being returned to their care so that the matter may be listed for hearing at short notice

6. Each party MR ISAAC born (omitted) 1979 and MS ISAAC born (omitted) 1985, their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children X born (omitted) 2014, Y born (omitted) 2009, and Z born (omitted) 2008 from the Commonwealth of Australia.

7. That X born (omitted) 2014, Y born (omitted) 2009, and Z born (omitted) 2008 be and are hereby restrained from leaving the Commonwealth of Australia.

8. It is requested that the Australian Federal Police give effect to this order by placing the name of the children on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watchlist until the Court orders its removal.

9. This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 13 of the Family Law Regulations 1984).

10. Pursuant to Section 68Q of the Family Law Act 1975 the extent to which this order is inconsistent with any family violence order between the parties, the family violence order is invalid.

11. Pursuant to s.68L(2) of the Family Law Act1975, the children X born (omitted) 2014, Y born (omitted) 2009, and Z born (omitted) 2008 be independently represented AND IT IS URGENTLY REQUESTED that Victoria Legal Aid arrange such independent representation and:

    (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

    (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;

    (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

    (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

12. The Independent Children’s Lawyer has liberty to apply to chambers for subpoenas to be issued with short service.

13. The proceeding be adjourned for Mention hearing on 15 March 2017 at 11:00am.

DIRECTING

1. The Registrar provide a copy of these orders to the Registrar of the Magistrates’ Court of Victoria (Melbourne Registry).

NOTING

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2353 of 2017

MS ISAAC

Applicant

And

MR ISAAC

Respondent

REASONS FOR JUDGMENT

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 urgent ex-parte application for an airport watch list order and recovery order of the children.  I have been considerably assisted today by the duty lawyer, Ms Keenan, from the Women’s Legal Service, who appears in this Court and also in the Magistrates’ Court of Victoria (“Magistrates’ Court”) in the family violence list.  She has assisted the mother with the paperwork and also with submissions in Court today, which included taking oral evidence from the mother.

3. Both parents are from (country omitted).  They have three children.  The oldest child, Z born on (omitted) 2008, aged nine, Y born on (omitted) 2009, aged eight, and X born (omitted) 2014 (“X”) and is two and a half years old (“the children”).

4. The mother says that she and the father were married in 2006, which is when she came to Australia.  There is an error in her affidavit, but her oral evidence is that they separated in November 2016, when there was an incident of family violence which involved the police taking out an intervention order on her behalf.  In her affidavit the mother says that the father was abusive during the marriage, emotionally, sexually and physically, and was violent towards her in front of the children and towards the children.  She says that since they separated, he has only spent a couple of hours a week with the children, supervised by her.

5. In her affidavit she refers to the father turning up to her house at around midnight on 9 March 2017, demanding to be let into the home.  She says that he physically assaulted her and their young son and threatened them.  She contacted police and he left, but he later returned and forcibly removed X from her.  She says that he threatened that he would kill himself and the children, and she called the police again and reported this to them, and also called the Department of Health and Human Services.

6. She says that this morning police officers attended her home and issued her with a family safety notice and removed the two older children from her care.  She has come to Court today seeking urgent orders that the children be recovered from the father’s care immediately and that the children be placed on the watch list.  She says in her affidavit that about a week ago the father’s brother attended her home, saying he needed to collect the father’s passport.  She says that when she checked yesterday, the children’s passports were missing.  (country omitted) is not a member of the Hague Convention Against Civil Aspects of Child Abduction, and given that, on the mother’s evidence, the passports have been removed without her notice, there is a risk that the children may be removed to (country omitted) if they are not placed on the watch list without notice to the father, and I will make that order.

7. Particularly in light of the safety notice and the brevity of the affidavit, which I am not at all critical of – it has been prepared with the assistance of a duty lawyer in urgent circumstances this afternoon – I asked for the mother to give some oral evidence to expand on that evidence, and her evidence is that the complaints that are made in the safety notice are essentially her complaints against the father, but the father has described them to the police as the mother being the perpetrator rather than the father.  The mother’s distress with respect to her children is palpable.

8. The mother described the incident that led to the separation in November 2016, where she says that the father broke her phone and her daughter’s phone and threatened her, saying that “I cannot kill you, but I can go to (country omitted) and kill your family.”  She also talks about the father being physically violent towards her and also verbally abusive, denigrating her, telling her that she does not know anything, and also being very controlling, wanting her to stay home and not go out.  As a result of that incident, the police took out an intervention order on her behalf that named her and the children as the protected persons.

9. That matter then was before the Magistrates’ Court sometime in February 2017.  The mother gave evidence that on that occasion the father promised her that he would change his behaviour and that she believed him, and that therefore she agreed to the intervention order being discontinued.  She says that his behaviour did improve, but only for two weeks before it reverted to what it has been.  She also says in her affidavit that the father has had mental health issues and has been suicidal in the past, and that just a couple of weeks ago the police took him to a hospital because of his mental health issues.  She says that the husband takes various prescription medications and also takes illicit drugs, including cocaine and ecstasy.

10. She says she is fearful for her children in the father’s care, that they are reliant on her for support, and that one of her daughters suffers from an anxiety disorder as a result of witnessing the father’s violence.  She is fearful of what the father will do with the children, given his threats to kill them, and she says that when the father attended her home and removed their son, he made threats with respect to killing his son and himself.  She says that a friend of hers, Ms R, told her yesterday that the father rang her and told her not to help the mother and said that he wants to take the kids and destroy her.

11. Ms Keenan submits that in her experience, it is likely that the police who attended the home to remove the children would not have been aware of the previous recent actions that had been taken with respect to the father.  Having heard the evidence of the mother in considering the material, in my view, what the mother is describing is consistent with coercive, controlling violence, and whilst I am mindful that the police took out a safety notice against her, in my view, on balance, the children are at risk if they remain with the father, and I intend to make the ex parte orders sought, placing the children on the watch list and issuing an urgent recovery order.

12. In the event that there is an intervention order that has been taken out against the mother in the meantime that has not yet been served, I am going to make a specific order pursuant to s.68Q of the Family Law Act 1975 (Cth), and the purpose of that is that if there is the existence of a state intervention order which is inconsistent with my order, then my order should prevail.

Further reasons

1. I am now going to give some further reason in light of the developments that have occurred during the course of this hearing this afternoon.  The Federal Circuit Court in Melbourne and Dandenong is greatly assisted by the presence of a liaison officer with the Department of Health and Human Services (“the Department”).  That service, which is not available in other states, provides the Court with enormous assistance in circumstances such as cases such as this that are brought before the Court very urgently, where the Court has very limited information but is dealing with very serious allegations of risk to vulnerable children.

2. In this instance, the liaison officer, Ms A, has been able to provide some initial information, first, via email in response to an email from my chambers this afternoon and with further information provided via telephone during the course of this afternoon’s hearing.  I should indicate that this has all occurred within the space of less than two hours.  Ms A has provided information to the Court that there have been four chid protection reports for the children and that three of those reports have not proceeded to an investigation but the fourth report, which relates to the incidents that are before the Court, is proceeding to an investigation.

3. The email from Ms A indicates that the information that the Department has received from police is that the nature of today’s report was the mother alleging that the father refused to return one of the children and made threats to kill the child, that the police responded to the allegation by attending the – it says “maternal”, but I think that’s a typographical error – paternal grandmother’s home, finding the father and child present.  The police arrested the father and returned to the police station with the father and child.

4. The father told the police that the mother smoked cannabis the previous day and threatened to kill herself in front of the children.  The police advised that they intended to issue intervention orders against both parents and naming the children as protected persons and listing the matter before the Melbourne Magistrates’ Court on 13 March 2017 – which is Monday, which is in fact a public holiday – and that the paternal uncle was identified as a potential carer for the children.

5. The protective history the Department has for the family indicates that the family is originally from (country omitted) with both parents having had significant mental health issues which appear to be as a result of post-traumatic stress disorder.  The email further indicates that the Department is progressing the matter to an investigation and at this stage, the children are living with the paternal uncle, given the police response in the early hours of this morning.  I briefly adjourned the matter so that Ms A could make further inquiries, expressing my concern about the children being placed with the paternal uncle who is an unknown entity in this matter and who, on the mother’s evidence, the mother alleges has colluded with the father to remove the children’s passports from home.

6. Ms A was able to give oral information to the Court with respect to contact the Department had with the children’s school which gave me some comfort with respect to the children returning to the mother.  And that report was that the school reported that the children, since late 2016, which coincides with when the parents separated, had presented to the school being social and confident and that in 2017 the school’s contacts with the mother and the children have been positive and that there has been no concerns about the children’s presentation or the mother’s presentation at the school.

7. The mother, in fact, attended the school for a parent/teacher interview just on 9 March 2017, yesterday, and the school indicated that she did not appear drug affected – which is one of the father’s allegations – and that she has never appeared drug-affected.  Ms A indicated that, after further telephone calls with the department workers and informing them of the application before the Court, it would be a matter for the Court as to whether or not the recovery order was made and that if the recovery order is made, the Department would proceed to an urgent home visit with the mother over the weekend.

8. In my view, that is the most appropriate thing to do.  It is an additional layer of protectiveness to have the Department involved urgently to carry out that home visit.  It is not known what involvement the paternal uncle has had with the children and whether he is a suitable carer or not. The mother alleges is that he has colluded with the father to remove the passports of the children which raises real concerns about the children being removed from Australia.

9. Given that I have some concern that there are cultural issues at play in this matter, as well as family violence issues and issues of coercion and control and particularly in light of the information from the school which is consistent with the children being well-cared for in the mother’s care, in my view, it is in the children’s best interests to issue the ex parte recovery order that I previously indicated that I would do.  I am also going to appoint an Independent Children’s Lawyer on an urgent basis and I’m going to give leave to the Independent Children’s Lawyer to approach my chambers to seek to be able to issue subpoenas at short notice to obtain information.

10. I had previously indicated that I would make this matter returnable next Wednesday at 11.00am and it will retain that date.  So the matter will come back into Court very shortly.  I am satisfied that there are protective matters in place for these children.  Balancing the risk issues before me, it is in the children’s best interests to make the orders that I have indicated that I will make.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  16 March 2017