MARAT & MALLARD
[2013] FMCAfam 168
•21 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARAT & MALLARD | [2013] FMCAfam 168 |
| FAMILY LAW – Parenting – interim hearing – application to suspend or discharge recovery order – existing final parenting orders. |
| Family Law Act 1975, ss.11F, 60CA, 60CC, 61DA, 64B, 67U, 67V, 68L |
| Goode & Goode (2006) FLC 93-286 Mallard & Marat [2011] FMCAfam 626 |
| Applicant: | MR MARAT |
| Respondent: | MS MALLARD |
| File Number: | SYC 4893 of 2007 |
| Judgment of: | Monahan FM |
| Hearing date: | 19 February 2013 |
| Date of Last Submission: | 19 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Reid Family Lawyers |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
Unless otherwise agreed to by the parties, in writing, through their legal representatives:
(a)by not later than 6:00pm on 22 February 2013, the Respondent mother (“the mother”) cause the child [Y], born [in] 1997, to be delivered to the Applicant father (“the father”) to [D] Police Station; and
(b)The father ensure that he is present to receive the child at [D] Police Station at 6:00pm on 22 February 2013, or at such other earlier time as the mother’s legal representative may advise the father’s legal representative.
Paragraph two (2) of the Orders made on 14 January 2013 be stayed until 6:05pm on 22 February 2013 unless the relevant Police forces form the reasonable belief that the mother is unlikely to comply with paragraph one (1) herein.
In the event that the mother fails to comply with paragraph one (1) herein, any Police Officer of the Commonwealth or of a State or Territory be permitted to arrest the mother without warrant and bring her before a judicial officer in the Sydney Registry of this Court at the earliest opportunity.
Subject to paragraph one (1) herein, the mother be restrained from relocating, or allowing the relocation of, the child’s residence from [address omitted], NSW.
The mother ensure that the child is appropriately prepared and positively encouraged to return to the father’s care pursuant to these Orders.
The parties ensure that the child is re-enrolled in and thereafter attends [S] School (“the child’s school”), on and from Monday, 25 February 2013.
The father forthwith cause his solicitors to forward a sealed copy of these Orders to the child’s school.
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), the child be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation AND FURTHER REQUEST that such appointment be expedited and:
(a)Upon appointment, 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 parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ 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 THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
The father have sole parental responsibility for the child.
Paragraphs 3-14 of the Orders made by the Family Court of Australia on 22 January 2009 be suspended.
Paragraphs five (5) and 6(a) and (c) of the Orders made on 14 January 2013 continue in full force and effect.
Paragraph 6(b) of the Orders made on 14 January 2013 be discharged and in lieu the parties be restrained from discussing these proceedings with the child except to the extent that may be necessary to explain to the child the necessity of attending at specific places or undertaking particular activities pursuant to these Orders.
Upon the child coming into the care of the father, paragraph four (4) of the Orders made on 19 February 2013 be discharged.
Within 72 hours of the child returning into his care, the father take the child to the child’s general practitioner (if available, or in lieu another general practitioner) to seek a referral to an appropriate child psychologist or therapist (“the practitioner”) for the purpose of non-reportable, therapeutic counselling.
Upon receipt of the referral, the father forthwith contact the practitioner and secure for the child the first available appointment (if possible, outside of school hours) and ensure that the child attends at such appointment and subsequent appointments that the practitioner may deem necessary.
The father be liable for the costs of the child’s therapeutic counselling (if applicable) until further order and any dispute as to the apportionment of liability for such fees be a matter for consideration at any future hearing of this matter.
AND THE COURT FURTHER ORDERS THAT:
All extant applications be adjourned to this Court on 27 March 2013 at 10:00am for mention (“the mention hearing”).
AND THE COURT NOTES THAT:
(A)These orders were made following a contested hearing on 19 February 2013.
(B)Paragraph 12 herein was unintentionally not pronounced by the Court.
(C)On 19 February 2013, the mother, following a direction by the Court, informed the Court that the child was situated at [address omitted], NSW.
(D)The time in paragraph one (1) herein was amended from being 12noon as pronounced to the time of 6:00pm by consent of the parties and as reflected by a signed minute of consent, the original of which will be held on the Court file.
(E)The purpose of the mention hearing is to:
a. consider the preliminary views of the Independent Children’s Lawyer;
b. receive an update on the progress of the parenting arrangements and the child’s therapy;
c. make further directions in the matter.
(F)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), 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 those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Marat & Mallard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4893 of 2007
| MR MARAT |
Applicant
And
| MS MALLARD |
Respondent
REASONS FOR JUDGMENT
These reasons are being delivered orally and can be settled if specifically requested.
Introduction
The specific proceedings that are relevant to this decision are between MR MARAT (“the father”) and MS MALLARD (“the mother”). The relevant children are [Y] (“[Y]”), born [in] 1997, and [X] (“[X]”), born [in] 1995 (collectively “the children”). I note that [X] recently turned 18 and suffers from an intellectual impairment.
In his application, the father seeks final orders under the Family Law Act 1975 (“the Act”) for the children to live with him and for him to have sole parental responsibility for the children. The father also seeks orders that they spend no time with the mother. The interim orders sought by the father included an order for the recovery of [Y]. It is that Order which I made on 14 January 2013 that is now in dispute.
The mother caused the filing of a Response, Affidavit in support and Notice of Child Abuse on 19 February 2013, that is, two days ago, on the day the matter was listed and the day that I heard the matter. I note that the matter was listed to 19 February 2013 by me following the issue of a recovery order on 14 January 2013.
Background
The parties were married [in] 1992 and separated on 15 March 2006. A divorce order took effect from 21 August 2007.
As stated, the parties have two children from their relationship, [Y] and [X].
The present proceedings were commenced by the father by his Initiating Application filed on 14 January 2013. As stated, the matter came before me urgently that same day and the Court made a recovery order with respect to [Y].
Prior to these current proceedings, the parties have had a long and unfortunate history before this Court and the Family Court of Australia (“the Family Court”). The parties’ initial family law proceedings culminated in Orders being made by consent in the Family Court on 22 June 2007. The parties returned to Family Court shortly afterwards and the initial parenting Orders were superseded by a further set of consent Orders made on 22 January 2009.
On 19 January 2010, the mother filed an Initiating Application in the Brisbane Registry of this Court. As will be discussed further below, this application appears to have been dismissed by Baumann FM in 2010.
A further Initiating Application was filed by the mother on 14 February 2011. In the same year, Altobelli FM was satisfied that this application should be summarily dismissed. Again, this application will be discussed below.
It is in these circumstances that the matter again came before the Court in my duty list on 19 February 2013 (“the interim hearing”) seeking, inter alia, that the Court review or discharge that Order. It is unclear whether the Police forces attempted to execute the recovery order before the matter came to Court that day. That said, my chambers understands that the Police did attend the Court on that day.
At the interim hearing, the father was represented by his solicitor,
Ms Reid, and the mother by her solicitor, Mr Iuliano.
Issues
As stated, the issue for determination in this decision is whether the Court accedes to the mother’s request to discharge or suspend the recovery order that I made on 14 January 2013.
If that be the Court’s decision, the mother agitates for the following interim orders that:
·the existing parenting orders be suspended;
·[Y] live with the mother;
·[Y] spend no time with the father; and
·the mother have sole parental responsibility for [Y].
In addition, she seeks a number of orders relevant to [Y] and the parties which include the following that:
·[Y] undertake therapeutic counselling;
·[Y] and the parties attend a Child-inclusive Child Dispute Conference pursuant to s.11F of the Act;
·a single expert report be prepared in respect of the matter; and
·there be the appointment of Independent Children’s Lawyer (“ICL”)
The father, as stated, opposes any suspension or discharge of the recovery order unless [Y] is returned by the mother to his care. At this point I note that the father did not specifically seek to be heard on the other matters raised by the mother. That said, he saw benefit in potential therapeutic intervention for [Y] given recent events.
On 14 January 2013, I made the following Orders, which included a recovery order as well as restraints upon the father to which he consented on a without admissions basis:
“1. All extant applications be adjourned to this Court on 19 February 2013 at 9:30am for mention (‘the mention hearing’).
2. Pursuant to s.67U of the Family Law Act 1975 (‘the Act’), a recovery order issue, directed to the Marshal of the Federal Magistrates Court, all officers of the Australian Federal Police and all officers of the Police forces of all States and Territories of Australia, requiring them to find and recover the child [Y], born [in] 1997,(‘the child’) and deliver the said children to the Applicant father, MR MARAT (‘the father’), born [in] 1971, at [address omitted], NSW, 2085, and for that purpose to stop and search any vehicle (including [omitted]), vessel or aircraft and to enter and search any premises or place (including [address omitted], Queensland) in which there is at any time reasonable cause to believe that the child may be found.
3. The father forthwith cause a copy of the Initiating Application, affidavit in support and a sealed copy of these Orders to be served on the Respondent mother.
AND THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
4. The child live with the father.
5. Without admissions, the father be restrained from consuming alcohol to excess at any time that the child is in his care and for a period of 12 hours prior to the child coming into his care AND for the avoidance of doubt, ‘to excess’ shall be taken to mean a blood alcohol concentration in excess of 0.05 grammes of alcohol in 100 millilitres of blood.
6. Each party be and is hereby restrained from the following:
a. denigrating the child, other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so;
b. discussing the details of these proceedings with, or in the presence or hearing of, the child; and
c. physically disciplining the child or allowing any third party to do so.”
Submissions
Each of the party’s legal representatives made oral submissions to the Court in support of the proposals sought. The transcript for the proceedings on 19 February 2013 will reflect those oral submissions.
In summary, the father, through his solicitor, Ms Reid, seeks that the recovery order remain in force and be executed in the event that the mother fails to organise [Y]’s return to the father’s care. The father denies the allegations made by the mother and will file an affidavit in response to the affidavit that the mother filed on the day that the matter was heard. The father also asked the Court to accept that the mother has acted covertly and against [Y]’s best interests, firstly, in failing to organise [Y] to return to Sydney in accordance with the existing parenting orders; secondly, in moving her residence to a place unknown; and thirdly, in withholding [Y] from re-commencing his schooling at [S] School. The father also asserts that the allegations made by the mother, which he denies, are similar to allegations that she has made in previous applications, made following the making of the current parenting orders in 2009.
The mother, through her solicitor, Mr Iuliano, asked the Court to ‘err on the side of caution’ and leave [Y] in the mother’s care and preferably discharge the recovery order that has been made. Mr Iuliano referred to the allegations contained in the mother’s affidavit about alleged abuse by the father and the father’s wife towards [Y] and [Y]’s alleged statements threatening self-harm should he be returned to Sydney or, more particularly, should he return to the father’s care. Indeed, the mother submits that it was her fears as to how [Y] may react to being recovered by the police and returned to the father’s care that caused her to leave her residence in [omitted] in southern Queensland and move herself and [Y] to northern New South Wales, and more particularly, the [B] area. The mother also cites this fear as her reason for not causing [Y] to return to Sydney to attend at [N] Local Court in January in respect of the Apprehended Domestic Violence Order (“ADVO”) initiated by the New South Wales Police following [Y]’s complaint late in 2012.
I note it was conceded by the parties that the New South Wales Police withdrew the ADVO application when the matter was before [N] Local Court on 16 January 2013, two days after I made the recovery order. The mother acknowledges in her affidavit that she was aware of the making of the recovery order courtesy of Ms Reid emailing the mother with the relevant documents on 17 January 2013. Indeed, the mother also states that the police rang her on 16 January 2013 and asked her to return [Y]. It is unclear whether the police had any intention to execute the recovery order when the matter was before the [N] Local Court that very day.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in s.64B of the Act. Parenting orders deal with where a child is to live, the time a child is to spend with another person, or may otherwise allocate parental responsibility in relation to a child.
The overarching principle relevant to parenting orders is found in s.60CA of the Act, which states:
“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.”
To determine the child’s best interests, of course, the Court is guided by the relevant statutory provisions, in particular, s.60CA through to s.60CC of the Act. The most relevant, of course, to these types of proceedings is the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3), where relevant. I will briefly consider those in a moment.
As I stated in the reasons I gave when I made the recovery order on 14 January 2013, under s.67U of the Act, the Court has the power to make a recovery order “as it thinks proper”. This provision is subject to s.67V of the Act in that in deciding whether or not to make the order, the Court must regard the best interests of the child as the paramount consideration. As stated, to determine the best interests of [Y] in this case, the Court must follow the relevant statutory provisions, or what is often referred to as “the statutory pathway”.
Being an interim hearing, the Court is also guided by the decision of the Full Court of the Family Court of Australia (“the Full Court”) in Goode & Goode (2006) FLC 93-286 (“Goode”). At paragraph 81 of Goode, the Full Court stated:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence, and disputes between parents, as to what constitutes the best interests of the child.”
Clearly, this matter is such a case. More specifically, it raises the reality that, generally speaking, the Court cannot fully determine issues of credit at an interim hearing as the hearing is truncated and the evidence being presented by the parties is still being assembled and has not been tested by cross-examination. Indeed, in this case, the evidence which the mother in this case refers to was only filed and served on the very day of the interim hearing. That all said, as stated, the Court must still follow the legislative pathway. In other words, the relevant provisions of the Act (post the 2006 shared parenting amendments, and as further amended in 2012 by the Family Violence amendments, when applicable) must be followed.
Regrettably, there appears to be continuing suspicion, animosity and distrust, between the parties in this case. They have a long history before this Court and the Family Court. Their matter is also complicated by the serious allegations each party makes against the other and the allegations the mother attributes to [Y].
The legislative pathway requires the Court, in making a parenting order – which would happen if the mother is successful in her proposal – to consider the presumption in favour of equal shared parental responsibility. I am referring, of course, to s.61DA of the Act which requires the Court to presume that it is in the best interests of the child for his or her parents to have equal shared parental responsibility. Both parties, of course, in this case, now agitate for orders for sole parental responsibility.
That said, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of the child or family violence. In addition, s.61DA(4) makes it clear that the presumption may be rebutted if its application could be contrary to the child’s best interests, those interests being determined by reference to the matters referred to in s.60CC in light of the evidence.
Of relevance at an interim hearing would be s.61DA(3) of the Act which states:
“When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
This particular provision was discussed by the Full Court in Goode at paragraph 78. I will return to this issue depending on whether the Court prefers the proposal of the mother or whether the Court believes that there otherwise should be an order allocating parental responsibility.
That said, on my reading of the current orders, that is, the 2009 Orders, there appears to be no order as to the allocation of parental responsibility. While the Orders made by consent in the Family Court of Australia on 22 June 2007 provided for the parties to have equal shared parental responsibility (see paragraph 14 of the minute attached to those Orders), that Order does not appear to have survived the further orders that were made by consent of the parties in the Family Court on 22 January 2009. I suspect this was an oversight as having no final order for parental responsibility, given the long history and the facts of this matter, would arguably be inappropriate.
I will now turn to the s.60CC factors.
Primary considerations: s.60CC(2) of the Act
The Court is required, under s.60CC(2)(a), to consider the benefit of the child having a “meaningful relationship” with both of the child’s parents. At this point let me note that “meaningful” does not “equal”, that it clearly signifies that both parents should be involved with their child, and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly just that: the right of the child. This case is complicated not just by the extremely poor or toxic relationship between the parties, but also by the reality of the mother’s decision to withhold [Y] from returning to his father’s care. It is also complicated by the tyranny of distance between the parties’ respective residences.
I am also required, under s.60CC(2)(b), to consider the need to protect a child such as [Y] from physical or psychological harm and being subjected to abuse, neglect or family violence. This is a live issue in this case. There is no doubt, as a general proposition, that it will be in [Y]’s best interests to develop a meaningful relationship with both of his parents. [Y] also has an intellectually-challenged 18-year-old brother who lives with the father. That proposition, however, needs to be balanced in against the imperative to protect [Y] from any physical or psychological harm and the like.
At this stage, I would also note that since the proceedings were commenced after 7 June 2012, pursuant to s.60CC(2A), the Court must give greater weight to the consideration in s.60CC(2)(b) than to s.60CC(2)(a).
In this case, I also note that the father commenced these most recent proceedings seeking a recovery order for [Y]. Part of his evidence, which was accepted when the matter came before me on 14 January 2013, was the fears the father raised in his material about [Y]’s safety and well-being whilst in the mother’s care. I further note that the mother has now filed material, and in particular, a Notice of Child Abuse raising fears about [Y]’s safety and well-being whilst in the father’s care. While there is evidence that the mother has recently taken [Y] to a general practitioner (“GP”) in [B], to gain a referral to a mental health professional, it is somewhat concerning that despite the allegations attributed to [Y] being made at least by 24 December 2012, it was not until 13 February 2013 that she caused [Y] to be seen by a GP. The fact that the mother waited until 13 February 2013 for [Y] to see a GP is arguably inconsistent with the mother’s fears (particularly as expressed in paragraph 62 of the mother’s affidavit). I also note the mother’s own evidence which suggests that she has been in receipt of legal advice from her current solicitors since 17 January 2013.
It is unfortunate that the Court was unable to have the benefit of a family consultant speaking to [Y], perhaps with the additional assistance of an ICL, if such could have been arranged in time in respect of this dispute. Whilst the Court could delay the process to ensure that that occurs, the Court could only do so if it formed the view that such was in [Y]’s best interests. The mother has the physical control of [Y] at the moment, and whilst I note her fears about the consequences to [Y] if he is recovered and/or returned to the father’s care, her decision to have [Y] remain in [B] in the care of what she described as “friends” meant that having a family consultant meet and speak with [Y] on or before 19 February 2013 was just not possible.
Additional considerations: s.60CC(3) of the Act
Section 60CC(3)(a): any views expressed by the child and other factors…
Clearly, [Y] is now aged 15 and there is nothing in the evidence to suggest that he does not have the maturity to express any views. The school reports suggest he is a very good student. Unfortunately, we only have the alleged views of [Y] as expressed by the mother in her recently filed affidavit and as allegedly made by [Y] to the New South Wales Police on 24 December 2012 in respect of the now withdrawn ADVO.
I agree with Mr Iuliano that caution is needed, given the allegations attributable to [Y]. Indeed, I made that very point when I gave my reasons for the making of the recovery order on 14 January 2013. It is concerning that the mother attributes her fear of [Y] being recovered as being influential in the decision not to attend [N] local court on 16 January 2013 in respect of the now-withdrawn ADVO application. Clearly it is open for the Court to assume that, given the decision by the New South Wales Police, their concerns about the necessity for such an order being made no longer exist.
There is no other evidence from the New South Wales or Queensland Police before me to assist me further and, in particular, evidence that would suggest that there has been, or is currently, any investigation into the allegations attributable to [Y].
I agree with Mr Iuliano that [Y]’ school records may shed some light on the issue. That said, the mother did not initiate any joint request for such records to be released. I accept that a subpoena could not be issued because the mother had not filed a Response until 19 February 2013, despite having knowledge of the particular proceedings a month earlier, and having acknowledged that she also consulted a solicitor around that time. I note that there is nothing I can see in either of [Y]’s school reports for 2012 that suggests anything about [Y] being abused or threatening self harm, or even needing the assistance of a mental health professional or counsellor.
I also agree with Mr Iuliano that the matter may benefit from the appointment of an ICL. The Court has the power to do so under s.68L of the Act. That said, the mother’s actions in not causing her own application to be filed, or in filing and requesting expedition of the orders sought in her Response, has meant any consideration of the appointment of an ICL was not possible until the matter came before me, as listed, two days ago.
Clearly, the Court accepts that the appointment of an ICL can take time, if not some weeks, to facilitate. That said, requests can be made by the Court to New South Wales Legal Aid for possible expedition. I am also cognisant of the fact that the parties are likely to expose themselves to an argument from any ICL as to the ICL’s costs, assuming they are not legally aided themselves, and I note the relevant provisions of s.117 of the Act in that regard.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and any other persons (including grandparents and other relatives)
I simply refer to previous comments.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity to participate...
That is a crucial factor here. The mother made a unilateral decision to withhold [Y] from his father and [Y]’s brother, but of course there were perhaps violence and abuse considerations that may explain her actions. These issues will need testing.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances
Clearly there needs to be some change here. The present situation cannot continue. We cannot have children being spirited off or withheld by parents, for whatever reason, without a proper examination of the reasons for it.
In this case, the mother raises her fears about [Y]’s safety and well-being if he is recovered to the father’s care. That said, her own evidence is that she has left her former residence in southern Queensland that she shares with her husband and is currently searching for accommodation in the [B] area. It would appear, the mother and [Y] are currently living in temporary accommodation, perhaps having done so since early January 2013.
The mother asserts that she has made inquiries of [B] School and has purchased the books needed for [Y]’s schooling. Moreover, the mother asserts that she is assisting [Y] with school-related work to aid him in the transition to [B] School, despite him actually not having commenced his schooling at that school. The father, not surprisingly, seeks [Y]’s return to Sydney so that he can continue his school at [S] School. I note I have previously referred to [Y]’s school reports from 2012. Indeed, these were tendered by the father and marked as Exhibit “AF1”. Though [Y]’s grades dropped somewhat in English and in what is described as “PDHPE” (presumably standing for ‘Personal Development, Health and Physical Education’), the comments made by his teachers in both semester 1 and 2 are very complimentary and [Y] appears to be a hardworking and diligent student. I would also note that [Y] was involved in the school [omitted] team and was also a member of the school’s [omitted].
Section 60CC(3)(e): the practical difficulty and expense of 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…
This would of course be relevant if the mother’s proposal is preferred. I will turn to this issue if that be the Court’s decision.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs...
I refer to previous comments made in this decision and will canvas the other proceedings that have taken place between the parties, in a moment. The reason for doing so will, in part, be relevant to the issues of the parties’ respective parenting capacities.
Section 60CC(3)(g): the maturity, sex, lifestyle, background of the child and either of the child’s parents, and any other characteristics of the child that the court thinks are relevant…
Apart from comments previously raised, there are no other specific matters that I will refer to at this time.
Section 60CC(3)(h): if the child is an Aboriginal or Torres Strait Islander child…
This consideration is not relevant in the present dispute, or rather I have no evidence that it is relevant in the present dispute.
Section 60CC(3)(i): the attitude to the child and the responsibilities of parenthood …
I reiterate my earlier comments.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family…
There are allegations raised in this matter, and I refer to previous comments made in respect of the allegations, particularly attributable to [Y].
Section 60CC(3)(k): if a family violence order applies or did apply, and the inferences that can be drawn…
I again refer to the previous comments that I have made about the now-withdrawn ADVO application.
Curiously, the mother’s husband’s affidavit refers to the mother seeking a family violence order against the father and his wife in early January 2013. The mother does not appear to make any reference to this in her affidavit. That said, certainly there was no evidence put to the Court that there is any family violence order between the parties, or impacting upon either [Y] or [X].
Section 60CC(3)(l): whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There are current parenting orders in this matter. Of course, this decision relates to the mother’s request to reconsider the recovery order, hence the sub-section has little relevance today.
Section 60CC(3)(m): any other fact or circumstance the Court thinks is relevant
There is a long history of proceedings between the parties over their two children. This is of major concern to the Court. I note again that consent orders were entered into by the parties, with the assistance of an ICL, in 2007.
These orders were varied, by the consent of the parties, in early 2009, it would appear primarily due to the mother’s relocation to Queensland.
On 22 January 2010, a recovery order in the father’s favour was made by the presiding Magistrate at [M] Local Court. That recovery order was made in respect of both children.
On 27 January 2010, the mother appears to have filed an Application in a Case in the Brisbane Registry of this Court, in which she sought a recovery order and that the children live with her. The mother’s application was supported by an affidavit sworn on 19 January 2010. In that affidavit, the mother raised allegations of [Y] being a victim of neglect and physical and mental abuse in the father’s household. The allegations included a hearsay assertion that the father said words to the effect, “Fuck the law, it’s my house, you’re my kids, and I will do what I want!”
In a further affidavit sworn and filed on 27 January 2010, the mother deposed to the execution of a recovery order by Police on 25 January 2010, evidently after the mother had previously withheld the children from the father. The affidavit contains a similar litany of allegations about the father, arguably in an inadmissible form. The affidavit annexes the recovery order that was made in [M] Local Court on 22 January 2010. The Application in a Case was evidently filed following the Initiating Application filed by the mother in the Brisbane Registry of this Court on 19 January 2010 (“the 2010 proceedings”).
It appears that the mother’s application was dismissed on 27 September 2010. On 14 February 2011, the mother filed yet another application seeking a variation of the consent orders made on 22 January 2009 (“the 2011 proceedings”). This application was transferred by Baumann FM of the Brisbane registry to the Sydney Registry of this Court, and was ultimately heard by Altobelli FM on 27 May 2011. In his reasons, which were reported in the decision of Mallard & Marat [2011] FMCAfam 626, Altobelli FM commented on the apparent dismissal of the 2010 proceedings on the basis of Rice & Asplund. In the 2011 proceedings, his Honour was assisted by a number of records produced by the Department of Human Services and the Police. These records, which were extracted in part of his Honour’s reasons, certainly detail serial allegations made by the mother against the alleged mistreatment of the child in the father’s household. Despite this, his Honour noted a number of things from the Department of Human Services records. They were as follows:
·An Assessment Record dated 8 March 2011 concluded that the child was “safe, that the protective factors are adequate, that the department will cease protective action and that there is an unlikely probability of harm.”
·A document entitled Severity of Harm – Risk of Harm states: “The children have historically been exposed to domestic violence between the natural parents which is likely to have impacted on their emotional functioning. [Y] has heightened sensitivity to conflict between adults…Although [Y] spoke about incidents of concern, he did not express that he felt unsafe living with his father.”
·An interview with DOHS representative where “[Y] clearly articulates the view that he, in fact, prefers to stay in Sydney because of his school there but that it would be different if the mother were in Sydney.”
Altobelli FM also stated and considered material produced from Police records. These included the following references:
“On 1 February 2011 there is record of the mother attempting to take the children from their school. The mother admitted to the police that she has mild bipolar. The mother said that her 16 year old son, [X], can make up his own mind. The record says that the police explained that as [X] suffers from autism he is unable to communicate or understand what is going on. She first said it was okay for [Y] to go and then he changes his mind. [Y] did say that he did not want to live with the father and that the father has hit his step-mother. On 7 December there is an incident like an argument between the father and [name omitted], his wife. However, the narrative suggests that this incident was not witnessed by the children.”
Having considered the evidence before him, evidence that, admittedly, was considerably more ample than that available at the interim hearing before me, his Honour, Altobelli FM, dismissed the mother’s then application holding that, even taken at its highest, the mother’s position and the evidence was not sufficient to overcome the barrier of Rice & Asplund.
The orders sought by the mother in her Response to these recovery proceedings before me has come before the Court with even less evidence available to the Court than on the mother’s previous attempts. Furthermore, the matter proceeds in circumstances where the Court has already made an order for the recovery of [Y] and the mother has admitted, in her own evidence, that she has taken steps to thwart the execution of that recovery order by law enforcement officers. The mother continues to flout the existing parenting orders and did not seek to file any further application to vary the existing Orders and has responded at the last possible moment to the father’s application. There is also evidence that would suggest that the mother has had the benefit of legal advice for over a month and has knowledge as to how to commence an action for, or respond to, court orders.
Conclusion
Having considered the respective applications and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied that it is in [Y]’s best interests that the mother cause [Y] to be returned to the father’s care by 12 noon tomorrow, Friday, 22 February 2013. I note that following the delivery of these oral reasons, the parties agreed, and requested the Court to change, this time to “6:00pm” (as reflected by a signed minute of consent (“the consent Minute”)).
Unless otherwise agreed in writing between the parties through their legal representatives, this will require the mother to cause [Y] to be delivered to the [D] Police Station.
Subject to the Order in respect of the mother causing [Y]’s return to the father’s care, the injunction preventing the mother from causing [Y]’s residence to change from the location provided to the Court when the matter was before two days ago, will remain in force.
Despite her natural disappointment, presumably, with this decision, the Court will expect the mother to appropriately prepare [Y] for his return to the father’s care.
I will stay the recovery order until 12:05pm tomorrow (noting that the pursuant to the consent Minute this time was changed to “6:05pm”) and my Chambers will forward a copy of the relevant Orders to the Australian Federal Police following pronouncement and execution. Those Orders will disclose the residential address provided to the Court by the mother. In the event that [Y] is not returned to the father’s care by the time required tomorrow, the Police will be at liberty to affect the recovery order and otherwise locate the mother and secure her arrest. I do hope, for [Y]’s sake, that this can be avoided. [Y] has already had to endure a previous recovery by the Police.
Within 72 hours of [Y] coming into the father’s care, the father will be required to have [Y] attend upon his GP, or another GP if [Y]’s GP is unavailable, for the purposes of obtaining a referral to an appropriate psychologist for non-reportable therapy. The father is thereafter to further cause an appointment to be obtained from the relevant psychologist who has the capacity to commence that therapy at the earliest opportunity and to thereafter cause [Y] to attend that therapy. Until the Court can consider this further, the costs associated with the therapeutic intervention not otherwise covered by Medicare or private health insurance, are to be borne by the father. The Court can reconsider any liability for any out-of-pocket contribution, if applicable, on the next occasion when the matter is before the Court.
The parties are also to ensure that [Y] recommences his schooling at [S] School, on and from next Monday, 25 February 2013. I will expect the father to appropriately prepare [Y] for this. The father is also to cause a copy of the Orders arising out of this decision to be sent by his solicitors to [S] School.
I am satisfied that the matter would indeed benefit from the appointment of an ICL and, accordingly, an Order will be appointing an ICL will be made along with a request to New South Wales Legal Aid to consider the expedition of that appointment.
There will be Orders today suspending paragraphs 3 to 14 inclusive of the minute of Orders attached to the orders made by Registrar Cameron in the Family Court of Australia on 22 January 2009.
I am satisfied that the matter should be listed to return to Court with the benefit of an ICL at the earliest opportunity and I will list the matter for mention at 10:00am on Wednesday, 27 March 2013.
I am also satisfied that there should be an interim Order for sole parental responsibility in the father’s favour. This can be reconsidered following input from the ICL.
In the circumstances, and given his application for costs, I will simply reserve the question of the father’s costs of these proceedings to date.
I will now pronounce the Orders, being satisfied that the Orders to be pronounced are in [Y]’s best interests.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Monahan FM.
Date: 1 March 2013
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