Lane & Callozzo
[2022] FedCFamC2F 127
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lane & Callozzo [2022] FedCFamC2F 127
File number: MLC 9431 of 2014 Judgment of: JUDGE O'SHANNESSY Date of judgment: 19 January 2022 Catchwords: FAMILY LAW – child overheld – final intervention order on 7 January 2022 alleged to be ex parte – pursuant to sections 68P and 68Q of the Family Law Act 1975 (Cth) the orders made that prevail over the 7 January orders – recovery order sought – no recovery order made – mother ordered to return child to the care of the father – listed for final hearing on 9 March 2021 – mother interviewed for family report just prior to intervention order and section 68R order – intervention order section 68R order suspending extant final orders. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 67Z, 68P, 68Q, 68R, 68T, 69ZL. Cases cited: Callozzo v Minister for Immigration & Anor.
Callozzo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Goode & Goode (2006) FLC 93-286.
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 19 January 2022 Place: Melbourne Solicitor for the Applicant: Perisic Lawyers Solicitor for the Respondent: Brendan Rothschild Legal Group Solicitor for the Independent Children's Lawyer: Perry Weston Lawyers ORDERS
MLC 9431 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LANE
Applicant
AND: MS CALLOZZO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 JANUARY 2022
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 January 2022
THE COURT ORDERS THAT:
1.Until further order the orders of the 28 May 2018 be and are reinstated and of full force and effect.
2.By 6:30pm Wednesday 19 January 2022 the Respondent Mother do all acts and things to cause the child to be delivered to the Suburb B police station for the recommencement of the Father's time.
3.By 6:30pm
SundaySaturday 29 January 2022 the Applicant Father do all acts and things to cause the child to be delivered to the Suburb H police station for the resumption of the Mother's time.4.Liberty to apply on short notice in the event the child is not made available at 6:30pm 19 January 2022.
5.The parties' costs this day are reserved.
6.Each parties' time for the filing of material for final hearing be extended by 7 days.
7.The settled reasons, this order and the 67Z response be provided to the Registrar at the Magistrates' Court at Melbourne with a request that those documents be placed on the file of case number …30.
THE COURT ORDERS BY CONSENT THAT:
8.Until further order both parents be and are restrained from physically disciplining the child.
9.Leave be granted to the Independent Children's Lawyer to provide to the Family Report Writer in this matter the s 67Z response provided by the Department of Families Fairness and Housing for the preparation of the Family Report.
AND THE COURT NOTES THAT:
A.By reason of section 68T(1)(c) the order of the Magistrates' Court of Victoria at Melbourne made 2022 in case number …30 ceases to have effect as at the time of this order.
B.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 are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lane & Callozzo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are settled but short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). The child X was born in 2012 and is now 9 years of age (‘the child’). His father is Mr Lane (‘the Father’) who is 50 years of age and his mother is Ms Callozzo (‘the Mother’) who is 46 years of age. An Independent Children’s Lawyer (‘the ICL’) was appointed for the child on 5 July 2021. The parents commenced to live together in 2012, married in 2013, separated in 2014 and divorced in 2016.
The orders and reasons were delivered ex tempore on 19 January 2021 and by the settling of these reasons uncontroversial background is added and is now paragraphs 3-6. Provisions of legislation referred to have been added. The transcript has been corrected for grammar and clarity.
The Mother, who is a Country C citizen, has been living in Australia since around 2011 had her visa cancelled on 21 October 2015. The Mother applied for a review of that decision to the Administrative Appeals Tribunal ('the Tribunal'). The matter was heard in the Tribunal on 10 February 2016 and on 24 March 2016, the Tribunal affirmed the decision to cancel the Mother's visa on 24 March 2016. The Mother filed an Application for Review of the decision of the Tribunal which was heard on 12 September 2019 in the Federal Circuit Court of Australia. In that proceeding, Judge Egan dismissed the Mother's Application for Review and delivered judgment known as Callozzo v Minister for Immigration & Anor on 22 October 2019.
The Mother appealed that decision to the Federal Court of Australia. That appeal was dismissed in Callozzo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs , delivered on 24 August 2021 by Middleton, Anastassiou and Cheeseman JJ (‘the Full Court’).
The Father's family law application had been listed for final hearing after the preparation of a family report, for hearing on 9 March 2022 (by trial directions made on 5 July 2021and revised on 22 September 2021). When the matter came before me on 22 September 2021 there was real concern of the Father and ICL that the Mother and potentially the child would be detained in an immigration detention facility pending the Mother's deportation.
The proceedings concern the child, who turned nine in 2012. As at 25 February 2021, Dr D of the E Health Clinic described the child as having “…ADHD, autistic traits and learning difficulties”. NDIS is involved in helping him and his Mother, who is looking after him full-time. He has qualified for NDIS. That document was annexed to the Mother's affidavit of 19 March 2021.
The proceedings have been before me in different forms on at least two occasions in 2021 including 5 July 2021 and 22 September 2021. The proceedings came on urgently when the Father issued an application in a case that was signed on 14 January 2022, accompanied by an affidavit sworn on 13 January 2022. The affidavit was filed on 14 January 2022 and the application was listed for 19 January 2022. The Father sought to bring the proceedings on urgently.
The context to the proceedings is that on 25 May 2018, the parents and the ICL entered into final orders by consent that provided that the child would live with the Mother and the parents would have equal shared parental responsibility, and the Father would spend time with the child each alternate weekend from Friday afternoon to Sunday evening, and for one half of all school holidays, as well as special occasions. In addition to that, there was an unusual order at [15] which states:
15. The Mother and Father each:
(a) Keep each other informed of their respective telephone numbers, residential addresses, and email addresses and notifies one another in writing, email or SMS test message of any change within 48 hours of any change;
(b)Inform the other immediately of any serious illness or injury to X;
(c) Inform the other immediately of any hospitalisation of X;
(d)Keep each other informed of any medical practitioners (including dental) or other health professionals treating X; and
(e)Authorise any treating practitioner or other health professional of X to communicate with and provide information to the other parent.
But what it was, was that in the event the child is required to attend upon a doctor or medical professional, each parent notify the other prior to any attendance by the child, and no medical procedure or operation be performed on the child, except with the joint consent of the Mother and the Father.
The parents are experienced litigators and have undertaken substantial litigation in many Courts. The Section 67Z Response was referred to by all parties today. That Section 67Z Response is dated 7 May 2021 and is a report prepared by the Department of Families, Fairness and Housing (in response to a party filing a notice of risk in this Court) and that Section 67Z Response states:
…
The Department of Families, Fairness and Housing, Child Protection has received the Notice of Child Abuse, Family Violence or Risk of Family Violence and in accordance with the protocol between the department and the Family Court of Australia and the Federal Circuit Court of Australia, the department intends to:
•Not intervene in the proceedings
•Take no further action
Statement of Child Protection History
Prior to the current report child protection had received 19 previous reports in relation to X. 15 reports were closed at intake. Four reports progressed to investigation, but none were subsequently substantiated. Previous concerns raised to child protection include allegations made between X’s parents about one another, allegations of physical harm perpetrated by X’s father, family violence perpetrated by X’s father, and alleged breaches of the Federal Circuit Court order.
Summary of Current Protective Concerns and Outcomes
The current report was made to child protection on 21/4/21. It raised concerns in relation to X allegedly being struck by his father to his hip causing a bruise. It was reported that X returned from contact with his father on 18/4/21, that his mother observed the bruise on 20/4/21, subsequently sought medical advice, and then reported the alleged incident to the police. Police then took a VARE from X, during which he disclosed his father struck him to his hip causing a bruise. Police subsequently interviewed X’s father and his partner, who both adamantly denied the allegations.
Child protection interviewed X and he disclosed that his father struck him to his hip causing a bruise; however, he also disclosed that he and his mother were trying to “win” the court matter in the Federal Circuit Court, that if they won then his mother would buy him a trampoline and a puppy, and they would then he would not need to go to his father’s home because all the fun things would be at his mother’s home.
Child protection have spoken to X’s school who report no issues in relation to either parent.
Child protection have decided not to substantiate the reported concerns and will close X’s case on 7/5/21 with support services offered to both parents.
…
(emphasis added).
The recent history of the matter is that on 5 July 2021, I made orders setting this matter down for a final hearing of three days in March 2022. On 23 September 2021, I made an order relating to what was to happen in the event that the Mother was taken into immigration detention, in regard to having her visa cancelled. I ordered that, in that event, the child was to be delivered to the Father's care until further order. I have not yet delivered reasons in regard to that decision, the parties had referred me to the decision of Egan J of 22 October 2019, whereby the Mother's appeal in regard to the cancellation of her visa was dismissed, and the decision of the Federal Court in proceedings were delivered by Middleton, Anastassiou and Cheeseman JJ on 24 August 2021. The effect of those decisions was that the original decision of the delegate of the Minister to cancel that Mother's visa to reside in Australia was confirmed.
The matter was before me on 17 December 2021, when an order was made in chambers which was essentially, a procedural order permitting the examination of subpoenaed material.
It is common ground in the proceedings that, pursuant to the 2018 orders, the child was with the Father during the Christmas celebration, and returned to the Mother's care on 24 or 25 December 2021.
The Father deposes that on 28 December, he had been contacted by police, and an allegation of assault on the child was discussed with him. He deposes that the police took no action, and indeed told him that they did not intend to take any action and that they would be closing the matter, but he says, “They reminded me to avoid physical discipline.”
I advised the parties that, prior to the matter coming on before me at 11:00am today, I had read the parties' material filed in 2021 and the Mother's affidavit from 2014, to try and have some context to the dispute before me today.
It is common ground that on or about 18 April 2021 (and I take these dates from the Section 67Z Response of Child Protection dated 7 May) the child returned from time with his Father and that, a couple of days later, the Mother observed a bruise on the child, and a report was made to Child Protection on 21 April 2021. As stated in the Section 67Z Response, Child Protection investigated the matter and did not substantiate the reported concerns.
Each party filed affidavits in the proceedings. However it is important to note that the current wave of proceedings in this Court between the parties commenced on or about 2 December 2020, when the Father filed an application on an urgent basis seeking what is known as a watchlist order. That is an order preventing either parent from removing the child from the Commonwealth of Australia. The Father's original application only sought a watchlist order, but he filed an amended application, whereby he sought a reversal of the child's living arrangements, on 7 April 2021. I infer that was served on the Mother soon thereafter. The Mother's response was ultimately filed on 22 April 2021, which is the day after the report was made to Child Protection, and sought a suspension of the Father’s time with the child.
The report to Child Protection was about two weeks after the Father had filed the amended application seeking to reverse the child's living arrangements.
The matter came on before Senior Judicial Registrar Hoult on 30 April 2021, and an order was made permitting the parties to examine subpoenaed material. Then Senior Judicial Registrar Hoult made orders on 30 April 2021 dismissing all extant applications and adjourned the matter for trial directions before me.
The previous proceedings of April and May are relevant to the current controversy because the Mother's application filed in the Magistrates Court sought the suspension of the extant 2018 order.
The proceedings before Senior Judicial Registrar Hoult had been concerned with an allegation about a bruise on the child's torso. The report of the doctor, stated that the child was asked how it happened and that:
He reports his dad hit him after he put something in the wrong place while building a chicken coop.
The Father swore an affidavit at that time, where he denied causing that bruise to that the child, and indeed, asserted that when the child left his home, he did not have that bruise on him, and that, in any event, there was not a chicken coop built, and that he never hit his son on that or any other occasion. The thrust of the Father's case, as it was developing in these proceedings, was that he had an appropriate relationship with his child, but that he was concerned at emotional abuse of the child at the hands of the Mother, including a concern about her behaviour after consuming alcohol.
The point is that that allegation was on an interim basis, and I assume without Senior Judicial Registrar Hoult finding that it occurred or did not occur, and dealt with by the orders of 30 April 2021. The orders of 30 April 2021 put back in place and ordered a resumption of the time as specified in the 2018 orders.
In that context, there were further events concerning the child. On 3 December, according to the Suburb B Primary School, a school that had previously been supportive of the Mother's care of the child, a concern arose from the Mother telephoning the school seeking the child's whereabouts, and it was apparent that the Mother was concerned where the child was. The school checked with the Father (the child was not there) and advised the Father of the conundrum. It appears that the Father contacted the local police, who in turn contacted the Mother, and the police told the school they were concerned about the child because the Mother appeared incoherent. The police then attended at the Mother's home, where they located the child.
The school was concerned about that incident, as was the Father. The Father emailed the school about that incident on 28 December, and I do not yet know the time that he did so. 28 December is the day that the police approached the Father, as described in his affidavit:
[10]On 28 December 2021 I received a telephone call from Detective Mr F from SOCIT at the Suburb G Police Station. He advised me that Ms Callozzo had attended at the station with X and that he claimed that I had been hitting him on the head during our last visit. I provided Detective Mr F with a summary of the issues I had been experiencing with Ms Callozzo. I also confirmed yet again that I have never physically disciplined X. I was advised that they would closing the matter but reminded me to avoid physical discipline. I confirmed that was fine and that I did not do so anyway.
The Mother was interviewed for the family report on 5 January 2022 and that report was to be prepared according to my orders by the end of January 2022 (as I had ordered back in July 2021). The family report is a matter being done at public expense and is a rare and quite precious resource that is made available to this family to assist it determine its disputes.
The Mother then took the child to a doctor on the following day, 6 January 2022. Via her solicitor today, she tells me that this was not a case of waiting to take the child to the doctor, but that she was unable to obtain an appointment with the child's regular doctor between Christmas Day and 6 January 2022 in the circumstances of a demand on services for COVID-19 times. That may be the case.
On 7 January 2022, the Mother made application to the Magistrates Court at Melbourne to vary a standing interim intervention order by, pursuant to section 68R of the Act, by suspending the Family Law Act orders. It is a unique circumstance of the constitutional consequences of jurisdiction in this country that whilst being a litigant in this Court and receiving services at public expense, including a family report, for the purposes of proceedings in this Court, one can, within a day or two, attend another Court and, by reason of sections 68P to 68Q of the Act, obtain an order, either ex parte or on short notice, suspending the existing order. An order was made by the Magistrates’ Court in 2022 that the order of 2018 was suspended until 4 February 2022.
The Mother's application before me today was initially for an adjournment of the matter until after 4 February 2022, when the Magistrates Court would have dealt with the matter, leaving the suspension in place. It was submitted to me by the ICL, and I am persuaded by it, that it is unlikely that the Magistrates Court would have been able to deal with the matter on 4 February other than as a directions hearing. The extant interim intervention order was made in December 2020. It was an interim order, and the parties await the final hearing of that controversy, which I am told is also listed in February. That supports the position that it is unlikely that the Court would be able to have the resources to have a final hearing to deal conclusively with the matter on 4 February.
It needs to be noted that the order of 7 January 2022, though obtained in the absence of the Father, is expressed to be a final order. The section 68R jurisdiction can only be exercised if the order being made is a final order, see section 68R(4). It is not an order that can be made on an interim intervention order. Hence, we have the phrasing of that order.
In the handwritten application that I am told by the Mother's lawyer that was used to obtain that order, there are two certificates from doctors. There is the letter of 6 January 2022 and also the letter from the doctor that relates to the 21 April controversy. The letter of 6 January 2022 states:
…
He was brought in by his mother – Ms Callozzo. I have met the family for the first time today. X states that his father became angry with him on 24th December and hit him across his head and his leg. He said that there was nobody else there at the time of this event.
On examination he appears fidgety (consistent with his background ADHD). He had a small resolving bruise on the L side of his trunk. There was no obvious tenderness on his head / trunk / legs and no other bruising noted.
…
I am told by the Mother's lawyer that the Magistrates Court was not informed of the proceedings on 30 April or of the contents of the Section 67Z Response. The Mother's lawyer makes the very appropriate observation that the Mother cannot be criticised for not providing the Section 67Z Response to the Melbourne Magistrates Court, because she did not have a copy of it. Very properly, his office had not provided the Mother with a copy of it because of the understanding that Department of Families, Fairness and Housing documents should not be provided to the parties lest they publicise or distribute them. But they should be informed of the contents. I was told and I accept that the Mother knew of the contents of the Section 67Z Response, but that she did not have a copy.
Nonetheless, the situation is that despite these proceedings edging towards a conclusion, on 7 January a final order was made in the absence of the Father suspending the existing order. I am troubled that the Magistrates Court was not aware of the surrounding circumstances, context and consequences of that order. The Father asserts he did not receive notice of the hearing in 2021 at all.
Before me today, the ICL has supported the position of the Father that the existing orders should be put back in place immediately. The ICL takes a stronger approach than the solicitor for the Father. The ICL was the same ICL involved in the 2018 proceedings and represents the child's best interests. It was submitted to me that I should place no weight at all on the current wave of allegations contained by the mother, in the circumstances where the chronology of events raises a scepticism about those allegations being genuine and in the context of the Section 67Z Response.
I note that the statements by the child that on their face indicate coaching by the Mother are, according to the Mother's submissions today, coached from the child by the Father.
The law on an interim hearing is that I cannot make a factual determination see Goode & Goode (2006) FLC 93-286. Section 60CA and sections 60CC(1) - (3) stipulates:
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I am to give more weight to the protective concern of the second primary consideration, that is, the need to protect the child, than I am to the first one, that is the benefit of a meaningful relationship with his Father.
These are highly polarised proceedings where each parent makes serious allegations against the other. I do not agree with the submissions of the ICL that I should give no weight at all to the allegations that the mother makes, and the evidence of the doctor's letter of 21 April, and in particular, the doctor's letter of 6 January, which I have recited above.
The decision for me on this interim hearing is whether, in all of the circumstances, I am satisfied that there is a sufficient risk to the welfare of the child that I should take the drastic step of suspending the Court orders until further order, or until another Court is able to deal with it. Taking all the matters into account and giving the Mother's allegations and the doctor’s letter of 6 January 2022 and the doctor’s letter of 21 April 2021 some weight and taking them into account, I am unable to find that the risk to the care of the child is such that I should suspend those orders. I must balance that against the risk to the child's welfare of, in highly contested proceedings, having his time and relationship with his Father interrupted. They are the matters that I must balance.
I take into account all of the matters under section 60CC(3) of the Act, to the extent that they are relevant. I place significant weight on the fact that the parents had a highly acrimonious relationship prior to the orders of 2018. That relationship continues, but nonetheless, there were consent orders made that the parents have equal shared parental responsibility and that the child spend substantial and significant time with his Father. It is in all of those circumstances that I am not prepared to accept the application of the Mother that I suspend the time, or that I acquiesce in the Magistrates Court suspension of that time.
There is also, then, a dispute (if the orders are to be reinstated), about when the child should go to the Father's care in accordance with those orders. The Mother sought that be not before tomorrow morning, so that she could prepare the child for the orders. The ICL opposed that, as did the solicitor for the Mother, in the circumstances where they were concerned at the potential for further involvement of the child in one parent discussing the other parent's time. I am persuaded that the changeover time should be tonight, at 6.30pm, at the Suburb B Police Station.
There was also a dispute as to whether the existing changeover arrangements that have been in place for roughly 12 months should remain. Those arrangements are that the father collects the child from the Suburb B Police Station for the start of his time, and at the end of his time, or the start of the mother's time, she collects the child from Suburb H Police Station. The mother sought today to change that so that all changeovers were from the Suburb B Police Station, on the basis that the Suburb H Police Station is in a relatively small town and the police station is not manned 24 hours a day.
I note that the Father's application for an automatic self-executing recovery order is not, in my view appropriate in the circumstances at this point in time. I indicate, I am not making a finding one way or another in regard to these allegations. I also order that there be liberty to apply in the event that the child is not made available this afternoon. I note that I raised the issue of liberty to apply, and that is one of the matters that I take into account in terms of whether it is appropriate that the child be returned to his Father's care.
I am not making any findings as to whether or not the Mother has, to paraphrase the submissions of the Father's solicitor, simply done the same thing as before to interrupt the Father's time and relationship with the child for her own reasons. I am not making that finding. Likewise, I am not making the finding that that has not occurred. That is something that I will try and get to the bottom of, if possible, at the final hearing, with the benefit of the family report.
It should be noted that the section 68R provision of the intervention order at paragraph 9, that is, the order made on 7 January suspending the orders that provide for the Father’ time, ceases to have effect by reason of section 68T(1)(c) of the Act from now, the pronouncement of these orders.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 February 2022
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