Mace and Mace

[2011] FamCA 291

FAMILY COURT OF AUSTRALIA

MACE & MACE [2011] FamCA 291

FAMILY LAW – CHILDREN – Child held over by father – Department of Communities (Child Safety) report as to concern for child while with father – Recovery order sought by mother – Recovery order made – Interim parenting orders until matter can be investigated at trial

Family Law Act 1975 (Cth)

APPLICANT: Mr Mace

RESPONDENT: Ms Mace

FILE NUMBER: BRC 4242 of 2008

DATE DELIVERED: 21 April 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 21 April 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Horsey
Jeff Horsey Solicitor

SOLICITOR FOR THE RESPONDENT:

Mr Hofstee

Hofstee Lawyers

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fox

Barbara Fox Solicitors

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. The child M born … November 2001 live with the mother and she have sole parental responsibility for the child.

AND IT IS FURTHER ORDERED

1. The parties must not discuss these proceedings this afternoon with the child.

2. The father deliver the child to the mother at 5.30pm today at Police Station 1 inside the station at its S Street entrance.

3. The mother’s application in a case filed 20 April 2011 be listed for further hearing before the Honourable Justice O’Reilly at 1.15pm on Thursday 28 April 2011.

AND IT IS FURTHER ORDERED

1. A recovery order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

2. Such persons are authorised and directed to find and recover the child M born … November 2001 and for that purpose with such assistance as they require 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 child may be found.

3. The child is to be delivered to the applicant at Police Station 1 S St Town 1 in Queensland or to such other address as agreed to between the person executing the recovery order and the applicant.

4. This recovery order remains in force for the period of six months.

NOTATION

It is intended that if the father delivers the child to the mother at 5.30pm today the recovery order not be executed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4242 of 2008

Mr Mace

Applicant

And

Ms Mace

Respondent

REASONS FOR JUDGMENT

1. On 31 August 2010 the Honourable Justice Barry made consent interim orders in relation to the child M born in November 2001 now 9 years. That order provided for a week about arrangement for the child to live with each parent from that date, in effect, until the end of the 2010 school year and for holiday time, the child’s birthday and Christmas time and adjourned the matter otherwise until 20 January 2011 at 9.30 am. 

2. No doubt it was intended that on that date and time further interim parenting orders would be made concerning M however the record shows that none have been made since, but that only procedural orders have been made, namely on 20 January 2011, 22 March 2011 and 6 April 2011.

3. Nonetheless, it appears to be common ground that the parties by agreement have continued the week about arrangement, that is, until 25 March 2011, which date represented the conclusion of a week with the father and the date on which, pursuant to the parties’ agreement continuing the week about orders, M ordinarily would have come into the care of the mother for a week.  On 25 March 2011, instead of returning M to the mother the father made a notification to the Department of Child Safety, which is fully documented in a detailed affidavit and report by Ms C, team worker with the Department.

4. The result of the notification and investigation by the team worker and others at the Department is a recommendation that the safety of the child requires that the child be in the mother’s care and spend only supervised time with the father until the matter can be further investigated.

5. It is against that background that the mother relies today on an application in a case filed yesterday 20 April 2011 for an interim parenting order that M live with her and that she have sole parental responsibility and that the child spend only supervised time with the father at a contact centre.  

6. However, the genesis of my hearing that application this afternoon was because of communication by Ms Fox, the independent children’s lawyer, to the Registrar, of her view of urgency of the matter.

7. I responded thus to a query to consider the urgency of the matter as to whether it should be dealt with today, next week or left until the next duty list which is not until 19 May 2011.  It was foreshadowed that if I were able to hear the application this afternoon the mother would couple the application with one instanter for a recovery order.  That is what has occurred, and I invited, in the urgent circumstances of the case, a listing at 4 o’clock this afternoon, delayed then until 4.15 this afternoon, being Easter Thursday, to deal with the matter.

8. Mr Horsey, solicitor for the mother, urges that I grant the mother’s applications. 

9. Mr Hofstee, solicitor for the father, urges that I ought not for several reasons.

10. First, the application is on very short notice. Secondly it was the father, not the mother, who made the notification to Child Safety on 25 March 2011 concerning statements by M that he would hurt the mother and harm himself. Further, the father disputes that there is any safety risk to M in the father’s care, and that this matter thus should take its ordinary course and come on ultimately in some list or other. 

11. I should mention that the matter it appears was on Barry J’s docket and with his Honour’s pending retirement is now docketless, not as yet being assigned to another judge.

12. Mr Hofstee pressed that not only should M continue to live with the father until there be further court intervention and a full interim hearing, but that M undergo psychological assessment before spending time with the mother. 

13. Ms Fox, the independent children’s lawyer, supports the mother’s applications.

14. Mr Hofstee’s submission on behalf of the father that there should not be further court intervention until M undergoes psychological assessment belies the long history of the matter and, indeed, an extensive report by Ms O annexed to her affidavit filed 25 August 2010, and the content of Ms C’s affidavit and report to which I have referred already.

15. Whilst it may well be the case that M needs to undergo psychological assessment, there are pressing circumstances to which I will now refer, which are of concern to me.  Ms C’s affidavit refers at pars 32 and 33 to the circumstance that the mother was to pick M up from school on 25 March but when she arrived there the father had, according to this report, at least, which is of course yet untested, taken the child stating that he was not going to release the child to the mother because of safety issues, the subject matter of the notification.

16. I would refer then to pars 43 to 46 as a group.  In par 43 there is reference to a person, Ms N, present with M at interview at his school, Ms N being a support person, that M presented as a child who had a specific script to stick to, and showed little to no emotion, including when talking about killing his mother/himself or whether he talked about hitting a student over the head with a cricket bat. 

17. Paragraph 44 refers to a report from Hospital 1.  Paragraph 45 refers to content of that report that Mr Mace, the father, made threats to kill himself in the presence of M on more than one occasion during his time at Hospital 1 on 25 September 2010.

18. Paragraph 46 then provides that the outcome of the current investigation and assessment is recorded as substantiated for emotional harm, with the child being in need of protection, the person responsible being recorded as the father.  I would refer then to par 49 which is as described by Ms Fox a most telling passage of a grave concern describing M as a vulnerable young boy who was acutely sensitive to the conflict between his parents.  There is reference then to content of Ms O’s report: “It is my view that much of it is a mirror of the antipathy [the father] feels towards the mother, and out of loyalty to his father, [M] has embraced this negativity and hopes that it will effect change to his situation”.

19. Paragraph 53 refers to the assessment that M’s disclosures and views have been strongly influenced by his father.  Paragraph 54 refers to the Queensland Health report assessing that the father has little regard for M’s wellbeing as he reportedly continued to discuss adult issues and threatened to kill himself while M was present despite M being visibly distressed and the social worker and other staff alerting the father at the time.  In conclusion, at par 56 is reference to the Department’s intention at this time to liaise closely with the independent children’s lawyer and provide information to her rather than itself stepping in to take custody of the child because of safety concerns, in particular because, as explained in par 57, the matter is before the Court.

20. For my part, in these circumstances, the existence of court proceedings is not a barrier to the Department acting, its function being to look after the safety of children, with the quite different role of this Court being to determine litigation and applications concerning children.  Be that as it may I am satisfied on the material I have read that on the very short term interim basis the child M born in November 2001 should live with the mother and that the mother have sole parental responsibility for the child.

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 21 April 2011.

Associate: 

Date: