Leyland & Leyland (No 2)
[2023] FedCFamC2F 1733
•12 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leyland & Leyland (No 2) [2023] FedCFamC2F 1733
File number: DCG 720 of 2023 Judgment of: JUDGE BLAKE Date of judgment: 12 December 2023 Catchwords: FAMILY LAW – Parenting – recovery order sought and issued. Legislation: Family Law Act 1975 (Cth) s 177. Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 12 December 2023 Place: Melbourne Counsel for the Applicant: Mr Pavone Solicitor for the Applicant: Simon Parsons and Co Advocate for the Respondent: In Person via Microsoft Teams2 Solicitor for the Respondent: None Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates ORDERS
DCG 720 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LEYLAND
Applicant
AND: MS LEYLAND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
12 DECEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to section 67Q of the Family Law Act 1975 (Cth), a Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police, and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the child X born in 2012;
(b)to deliver X to the Applicant Father at B Street, Town C, in the State of Victoria, or such other place reasonably accessible by the Applicant Father as the person effecting such recovery nominates; and
(c)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 X may be found.
PENDING FURTHER OTHER, THE COURT ORDERS THAT:
2.The Respondent Mother is to be in substantial attendance during all times that any of the children W born in 2009, X born in 2012, Y born in 2013, and Z born in 2018 (collectively ‘the children’) are in contact with the Maternal Grandfather, Mr D, and the Maternal Aunt, Ms E.
3.The Respondent Mother instruct all members of the maternal family not to contact, or communicate with, X.
4.The Respondent Mother ensure that no other person acting on her behalf, come into contact with, or communicate with, the children.
5.The Applicant Father ensure X does not have access to any mobile phone, or any other mobile communication device.
THE COURT FURTHER ORDERS THAT:
6.The Respondent Mother pay the Applicant’s Father’s costs of the Interim Defended Hearing today, 12 December 2023, fixed in the sum of $2,750, with such sum to be paid from the Respondent Mother’s share of the property shared by the parties as finally determined.
7.The Independent Children’s Lawyer’s costs of the Interim Defended Hearing today, 12 December 2023, fixed in the sum of $1,674, be reserved.
AND THE COURT NOTES THAT:
A.Order 2 above is made in the event that the Court determines the children may have contact with the Applicant Mother or her family members. Presently, Order 4 of the Orders of 6 December 2023 provide that the Applicant Mother is not to have communication with the children with all such contact being reserved.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 (Cth) 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 Court and then 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)
JUDGE BLAKE
These proceedings were listed urgently before the Court at 4.15 pm on 12 December 2023. They concern X, born in 2012.
On 6 December 2023, I made orders at an Interim Defended Hearing that X was to live with his Father and his siblings, being W, born in 2009, Y, born in 2013, and Z, born in 2018 (collectively, ‘the children’). Up until 6 December 2023, X had been living with his Mother and spending time with his Father, and his siblings had been living with the Father and spending time with the Mother.
I made the orders on the last occasion following submissions from Counsel for the Father and the Independent Children's Lawyer (‘ICL’), and also after hearing from the Mother who was unrepresented. My reasons for making those orders were delivered ex tempore, and settled reasons have been published. I do not intend to repeat them.
Following the making of the orders, X was placed in the care of his Father. He subsequently ran away from the Father and now is living with a maternal aunt. He then refused to return to his Father.
The Father and the ICL both sought that a recovery order be issued, and that X be returned to the care of his Father. The Mother submitted that X should be permitted to live with her. She too sought a recovery order to that effect.
What follows are brief reasons, given the time of day this matter was heard and the urgency which this matter was listed. I am required to determine the issue before me having regard to what is in X’s best interests, bearing in mind the guidance from the Full Court as to how to approach hearings such as this in Goode v Goode [2006] FamCA 1346.
BACKGROUND
This is a high-conflict matter, and unsurprisingly there is a degree of factual disputation between the parties. Doing the best I can in the circumstances, the non-contentious facts appear to be these:
(a)In accordance with the orders I made on 6 December 2023, in December 2023 the Mother attended City F Police Station to facilitate X being transferred into the care of the Father. X was placed in the care of his Father, though the Department of Fairness, Families and Housing (‘DFFH’) recall that the City F Police assisted by forcefully removing X from his Mother’s car to his Father’s car, as he was refusing;
(b)In December 2023 the Father took X to a shopping centre to buy new clothes and shoes. An incident ensued, the details of which are disputed, but X ran away from the Father. The Father was able, ultimately, with the assistance of others, to leave the shopping centre with X, and X returned home with his Father;
(c)At some point following this, X left the Father’s house and went to live with a maternal aunt, Ms E;
(d)Officers from DFFH visited X and Ms E in December 2023. There were no immediate concerns for X in the care of the maternal aunt. X apparently told the officers from DFFH that he did not want to return to the care of his Father;
(e)DFFH is continuing an investigation into these matters. This is the third report from DFFH in December 2023;
(f)The ICL wrote to my chambers on 11 December 2023 at 4.05 pm asking for a recovery order to issue so that X could be returned to his Father. The Court determined not to make those orders in chambers, but to list the matter for further hearing on an urgent basis on 12 December 2023; and
(g)In the interim, the Court made inquiries with the DFFH liaison officer at the Court about the status of these matters. The liaison officer prepared a short form report that was received by my chambers on the morning of 12 December 2023, and I read that report to the parties at the commencement of the hearing.
THE POSITION OF THE PARTIES AND THE EVIDENCE AND INFORMATION BEFORE THE COURT
Given the manner in which the proceeding was listed, neither party filed updating affidavits, but both parties put material before the Court, and I indicated to the parties what that material was, and that I had looked at it.
The position of the Father is, in summary, as follows:
(a)X was taken to school in December 2023 where he caused a scene and was disrespectful to his teacher;
(b)Next, X was taken to a shopping centre in December 2023. He received numerous calls from the Mother’s extended family. X ran away from the Father and, when located at the centre, was on the phone to the maternal aunt, Ms E;
(c)While driving home from the shopping centre, X was on the phone to his Mother;
(d)When X arrived home he ran into his bedroom. The Father says he could hear the Mother on loudspeaker encouraging X to put his bed of drawers against the door and climb out of the window because the maternal aunt was coming to get him;
(e)The Father pushed through the door and asked X to give him the phone. The Mother could be heard yelling, telling X not to let the Father take the phone;
(f)Police attended the Father’s residence, the Father says, because the Mother reported that the Father was abusing X. X ran up to the police car and tried to get in. The officers were shown Court orders and noted there were no signs of abuse. X was screaming and shouting at the officers and proceeded to run away, prompting a search by everyone, including the police; and
(g)Police eventually contacted the Father and advised him that the maternal aunt, Ms E, had X at her house, a distance of approximately 50 kilometres away.
The Mother’s position is set out in her letter to the Court dated December 2023. She disputes much of what the Father says. Her account of what occurred is as follows:
(a)X did not abuse a teacher in December 2023 as alleged, and calls can be made to the school principal to verify this;
(b)The manager at Store G at H Shopping Centre, security, and other employees who witnessed the incident were contacted by her and the maternal grandmother. She says they are willing to provide a statement to the police about the incident between X and his Father;
(c)She denies that X received numerous calls from her extended family. She says X called them for help numerous times. She denies calling X on the way back from H Shopping Centre;
(d)At 11.45 am in December 2023 she received a call from X who told her that he had run away. She says X told her he was at the house of a man 10 minutes away, and that the Father was abusing him. She says she asked X if he was safe and he confirmed he was, but he would not tell her where he was and he told her not to call the police. She says she ended the call after she confirmed he was safe and she did not hear from him for many hours;
(e)She received a subsequent call from her sister, Ms E, who indicated X had arrived there;
(f)DFFH called her in December 2023. X refused to be physically taken and placed in his Father’s care;
(g)In December 2023 she received a visit from the local police of Town J. She told them X was not at her residence;
(h)In December 2023 she received another call from her sister, Ms E, who told her that DFFH had visited her home and X was left in her care; and
(i)She wants her children to be safe and X is continuing to do his schooling under the care of her sister, and putting X back with his Father is only going to cause X more anxiety and fear.
The Mother sent various videos to the Court in December 2023. They record conversations between the Mother and members of her family and X. The Court has viewed those videos. I note in respect of these that:
(a)X is clearly distressed;
(b)In one video, members of the Mother’s family can be heard telling X not to interact with or speak with his Father in any way; and
(c)The Mother or members of her family were encouraging X to push things against his bedroom door to stop the Father from entering the room, and giving X express instructions on how to do that.
As part of her material, the Mother included a letter, apparently written by X. In that letter, X makes a number of allegations as follows:
(a)In December 2023 his Father told him he could not contact his Mother or any of his Mother’s family;
(b)That while he was speaking to his maternal aunt, Ms E, his Father grabbed his arm and tried to take his phone off him;
(c)When he arrived at H Shopping Centre, his Father told him his Mother’s family had manipulated him to be ‘like a junkie’;
(d)His Father threatened to ‘beat the shit out of him’, as a result of which he ran and hid in the change rooms;
(e)His Father found him and, with a worker nearby, his Father told him he was an embarrassment, and ‘a little cunt’. According to X, his Father grabbed him really hard by his arm and dragged him out while he was crying;
(f)His Father again grabbed him really hard and dragged him out screaming and crying to the car and then told him he didn’t want X living with him;
(g)That when the police arrived in the Father’s home, the Father lied to them;
(h)He told the police his Father had abused him by dragging him, grabbing his arm, hitting him and slapping him; and
(i)He escaped and went to his maternal aunt’s house and does not want to go back to his Father’s.
As I noted earlier, the Court received, in December 2023, a short form report from DFFH providing an update in relation to what had occurred. That report, I note, is from an independent source. In summary it said as follows:
(a)The children are currently subject to a child protection investigation;
(b)DFFH have a police narrative which is as follows:
(i)In December 2023, City F Police assisted with forcefully removing X from his Mother’s car to his Father’s car as he was refusing;
(ii)X walked away from the Father at H Shopping Centre and told staff at the store that his Father had left him there and he wanted to call his Mother to come and pick him up;
(iii)Staff permitted him to call his Mother and his aunt, and X told both of them the Father had been assaulting him and screaming at him, and dragged him around H Shopping Centre;
(iv)The Father told X he needed to go home and X locked himself in the change room and started screaming that he wanted to go to his Mother’s house;
(v)The Father said that if X did not come out he would drag him out;
(vi)X opened the door and walked out of H Shopping Centre. There were no assaults;
(vii)Police interviewed the Store G manager, security, and reviewed footage and confirmed there were no assaults, and the Father had never dragged X anywhere;
(viii)The police note X appears to be lying to try to get what he wants, which is to go back to his Mother’s house;
(ix)X became increasingly heightened when he returned to his Father’s house. Police reviewed the CCTV from the Father’s house. Footage shows X on his phone to his Mother crying and screaming that the Father is hurting him and hitting and screaming at him. The footage viewed shows, however, the Father calmly speaking to X from a distance with X on the phone to his Mother, and his Mother actively encouraging X to run away and smash windows at the house;
(x)It appeared there were code phrases being used between the Mother and X;
(xi)Several of the Mother’s family members have called 000. When police had called back saying there are no concerns for X, those family members have become angry and aggressive and started calling other police stations to find a different answer. Police considered this behaviour will continue and that X will continue to make further lies in an attempt to return to his Mother’s house;
(xii)Police spoke to X’s sister, who said the Father had done nothing wrong and stated that X is screaming and making up lies;
(xiii)Police firmly believe the maternal family will continue to call 000 to get the answer they want;
(xiv)Police believe the Father’s address is a safe and healthy environment for X to be living in, and had no concerns for him there; and
(xv)Reports have been submitted to members for information, as it is believed there will be many future 000 calls from the maternal family unhappy with the Family Court’s judgment that the Father has full custody of X;
(c)DFFH confirms it attempted to gain the cooperation of the maternal aunt and the Mother to facilitate X’s return to the Father over a weekend in December 2023. DFFH noted the maternal family refused to cooperate, stating their belief that X was at risk in the Father’s care;
(d)DFFH sought a safe custody warrant in December 2023 to assist with the situation, but it was not actioned;
(e)The Australian Federal Police were consulted and advised they have no power to remove X without a recovery order;
(f)There are no immediate concerns for X in the care of the maternal aunt; and
(g)X has told DFFH he does not wish to return to the care of his Father.
CONSIDERATION
I am unable, in an interim hearing, to make any factual findings, but I make the following observations from the evidence that I have traversed briefly above:
(a)The police reports, the reports of the Store G workers and others do not support either X or the Mother’s account of what occurred at H Shopping Centre;
(b)The CCTV footage viewed by the police does not support X or the Mother’s account of what occurred;
(c)There is no evidence of the Father abusing X. The police view is that X is making things up;
(d)The Mother does not appear, nor do members of her family at any point over the course of the weekend, to have encouraged X to return to his Father. Nor have those family members attempted to ensure compliance with Court orders. There is an apparent contentedness to facilitate non-compliance with Court orders by X and by themselves;
(e)It would appear that X becomes very heightened and distressed when placed in these situations, and I note he tends to be placed in them when the Mother intervenes. So much is apparent from the police narrative in the DFFH report;
(f)It is also a matter I observed at the interim defended hearing on 6 December 2023 and commented on when I viewed videos prior to making the orders I made on the last occasion. It is a matter that can also be observed from the videos the Mother has submitted to the Court in December 2023;
(g)Next, the Mother’s assertions that X is continuing to do his schooling under the care of the maternal aunt cannot be believed when one has regard to the school attendance records that I referred to on 6 December 2023;
(h)I note that the ICL has contacted the principal at X’s school, and contrary to what is asserted by the Mother, those reports received from the ICL corroborate the Father’s account of X’s attendance to school; and
(i)Finally, I note the Mother has a history of not complying with Court orders, and I referred to that history in the published reasons of 6 December 2023.
There is another matter that bears upon the present situation. X is currently in the care of the maternal aunt, Ms E. I note that previous orders made on 1 November 2023, by consent, were to the effect that the Mother was to be in substantial attendance when any of the children are with the maternal grandfather or the maternal aunt. That order, it seems, was inadvertently discharged last week, and I was not addressed on it. The order is significant, however, because it indicates there is some risk to X in the care of the maternal aunt. Despite that risk, however, the Mother seems now content to permit X to reside there.
It is very clear that, unfortunately, X is very highly distressed. Given his resistance to change over at City F, his decision to run away from his Father and his statements to DFFH and the police that he does not wish to go to his Father’s, I have given very serious consideration to whether I should issue the recovery order sought by the Father and the ICL. There is little doubt that if police are forced to take X and place him with the Father, X will become significantly distressed.
X’s distress in the situation I have just described, however, needs to be weighed against all of the other matters and evidence. The Mother has consistently failed to comply with Court orders. X was removed by her at least once, and maybe twice in breach of those orders. There is clear evidence that the Mother’s engagement with X heightens his behaviour. There is clear evidence that the members of the Mother’s family heighten X’s behaviour, and both parties instruct him on how to behave. It is significant that the Mother continues to believe X, notwithstanding the independent evidence of police and others that I have set out above. There is also clear evidence of the Mother, and her family, simply refusing to comply with Court orders, or to encourage X to comply with those orders. All of these matters taken together mean there is a real risk that grave emotional harm is being caused to X through the actions of the Mother and her family.
On 6 December 2023, I was of the view that X’s best interests meant he should live with the Father. I remain of that view for the reasons I gave then. If anything, my view has been reinforced, given the conduct of a Mother and her family, and the evidence I have referred to above. I will issue the recovery order sought by the Father and ICL. I regard it as in X’s best interests in a difficult case that such an order issue.
I note the evidence before me and the statements made to me in during the hearing indicate that X becomes heightened when contacted by the Mother and members of her family. X is 11 years old. Despite that, the evidence shows he has a mobile phone and has been contacted on it. It is not appropriate that X have that phone. I will issue an order that the Father ensure X does not have access to any mobile phone or any other mobile communication device, pending further order from the Court.
There is a significant issue in this case, borne out by the evidence from DFFH, of the maternal family seeking to help the Mother keep X in her care. I will issue an order that the Mother instruct all members of her family not to contact X until further order of the Court. The Mother must also ensure that no person acting on her behalf come into contact with X.
Finally, I will remake order 8 of the orders of 1 November 2023 regarding the Mother being in substantial attendance when the children are in the care of the maternal grandfather or the maternal aunt.
In short, the unfortunate outcome of this case of the present is that the Mother and her family should not have any contact with any of the children at all, whether initiated by any of them or her until the Child Impact Reports interviews are conducted in January 2024.
As I have indicated, I will make the orders set out in these reasons.
COSTS
At the conclusion of the hearing, the Father made an application for costs in the amount of $2,750, with such sum to be paid from the property proceeds. As explained to the parties, usually in these proceedings, each party bears their own costs. There needs to be special or justifying circumstances under section 117 of the Family Law Act 1975 (Cth) to award costs. The Mother opposed the costs order. I am of the view that I should make the costs orders sought by Mr Pavone, Counsel for the Father. I note that of all of the evidence I have traversed above, there is not a skerrick of evidence that indicates there is any attempt by the Mother to comply with the Court orders, and that has, in my view, necessitated the hearing on 12 December 2023. Had it been different, the outcome may have been different. Mr Marchetti, Counsel for the ICL, simply seeks the ICL’s costs be reserved. I will reserve the ICL’s costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Blake. Associate:
Dated: 25 January 2024
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