MARWOOD & FRASER

[2018] FCCA 1254

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARWOOD & FRASER [2018] FCCA 1254

Catchwords:
FAMILY LAW – Parenting – father overheld the children – recovery order issue – children spend no time with father.

Applicant: MS MARWOOD

Respondent: MR FRASER

File Number: AYC 166 of 2018

Judgment of: Judge Hartnett

Hearing date: 9 April 2018

Delivered at: Melbourne

Delivered on: 9 April 2018

REPRESENTATION

Counsel for the Applicant: Ms Rama

Solicitors for the Applicant: Rama Myers Family Lawyers

The Respondent: In Person by telephone

ORDER

1. A Recovery Order do issue authorising/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 children [X] born 2013 and [Y] born 2016 (‘the children’) to deliver the said children to the Applicant mother at Suburb A in the State of New South Wales, or such other place as the Applicant and the person effecting such recovery agree to be appropriate; and

   (b)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 said children may be found.

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

1. The father, his servants or agents, be and are hereby restrained from again removing or causing the removal of the children from the care of the mother, upon any breach of which by any person that person may be arrested without warrant.

2. The children live with the mother.

3. The children spend no time with the father.

4. The father file and serve a response and affidavit within 28 days together with a notice of address for service.

5. Otherwise all extant applications are adjourned to the Albury circuit sittings on 18 June 2018 at 10.00am for interim hearing.

6. The orders shall prevail over any inconsistent orders that may be or may have been made in the State of New South Wales including any provisional apprehended domestic violence order.

AND THE COURT NOTES THAT:

A.Pursuant to s.62B and s.65DA(2) 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 the Annexure and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

AYC 166 of 2018

MS MARWOOD

Applicant

And

MR FRASER

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Preliminary

1. Before the Court this day is a time abridged application for parenting orders, made by the mother, in circumstances where the father has overheld the children in Suburb C and fails to return them to the mother, despite her repeated requests. In support of the mother’s initiating application, is an affidavit of evidence affirmed by the mother on 6 April 2018. 

2. At the outset of these reasons I note that the Court made a recovery order this day together with further orders, which included that the children live with their mother and spend no time with their father until further order.  Further, the Court made orders that the orders it makes this day shall prevail over any inconsistent order that has been made in the State of New South Wales, including any provisional apprehended domestic violence order. 

3. The Court expedited the preparation of the recovery order and orders made this day and liaised with the Australian Federal Police by telephone and with the local police in Suburb C by telephone. The subject children of this application were in a child care centre this day. However, the father or his agent removed the children from the child care centre prior to the Australian Federal Police being able to facilitate a handover of the children to the mother.

4. The solicitors for the Applicant mother did communicate with the Respondent father as to the application filed this day, which was sought to be heard urgently. The father telephoned the Court and indicated that with such short service he was unable (he being in Suburb C) to do anything other than appear by telephone at this hearing. The Court facilitated that. The father’s threatening verbal commentary was of concern to the Court. The father indicated that, regardless of what order the Court would make, the mother would “not be getting the children (back)”. Then upon hearing the orders made, suggested he would abscond with the children. He said, relevantly:-

   “Have fun finding them...I’m taking off with them…She’s not getting them.”

5. The father is currently the subject of an intensive corrections order with another period of some four months to run.  He spent three months prior to 2017 incarcerated in respect of charges relating to an assault upon the mother. The father has otherwise a criminal record, but indicated when asked by the Court as to particulars concerning it, that it was “minor”.  The father’s allegations against the mother include that the mother has a serious mental health illness; is a drug user; has threatened to stab the father and the children; threatened to burn his family’s houses down; and abandoned the children, handing them over to him freely and not wishing for their return. All of his allegations were denied by the mother.

Background

1. The mother was born on 1992 and is aged 25 years.  The father was born on 1972 and he is aged 45 years.  The parties resided together in a de facto relationship for approximately six years before finally separating on 19 June 2017.  The two children of the relationship have always resided with their mother.  Prior to separation she was the children’s primary carer and post-separation, save for this time spent with the father and other times, as agreed between the parties, she has been the sole carer for the children. 

2. On 6 June 2017 the father assaulted the mother in the presence of the child, [X], by grabbing her around the throat and pushing her against the wall. Over the next few days the father, the mother alleges, was aggressive toward her and threatened to kill them both.  There was then a further incident on 19 June 2017, where the father pushed the maternal grandmother to the ground and made threats toward the mother. The police were called, and the father was arrested.

3. Following the above described incidents, the police applied for and obtained a provisional apprehended violence order on behalf of the mother and children. Additionally, the father was charged with assault upon the mother, amongst other charges. The father pleaded guilty and was sentenced to three months in jail.

4. The father did not see the children during his period of incarceration.  Following his release from jail in or about 2017 he was paroled to live with his parents near Suburb C for a period of nine months.  He spent no time with the children for the balance of 2017.  On 14 September 2017 a final apprehended violence order (against the father) was made for a period of two years protecting the mother and children. 

5. In January 2018 the mother made an application to amend the apprehended violence order to enable the father to contact herself and the children and for the father to be able to spend time with the children. In February 2018 the mother and father agreed to the children spending some time with the father in Suburb C.  The mother drove the children to Region 1 and met the father there. The children spent a week with their father before the father returned them to Region 2.  The visit and changeovers went without incident.

6. Thereafter the mother agreed to a further period of time for the children to spend with their father.  The mother agreed for a period from 11 March 2018 to include the Easter break and extend to 3 April 2018.  During this period of time the father began texting the mother suggesting that she “sign the children over to him”.  The mother refused.  The father then began accusing the mother of being a bad mother, an accusation he made again today during the course of the proceedings. 

7. Toward the end of the children’s March to April 2018 visit with their father, the mother’s calls to the father were not answered. The mother tried ringing the father’s parents, but they also did not return her calls.  Out of desperation, the mother contacted the Suburb B Police Station and requested that they conduct a welfare check.

8. On Monday, 2 April 2018 the father advised the mother that he was not returning the children to her. On 5 April 2018 the mother sought legal advice.  She requested of the father to return the children to her care.  It was very clear that the mother wished the children to be returned to her in accordance with the parties’ prior agreement. 

9. The father responded to the mother that she was not getting the children back.  He said:-

   “You are on drugs and the kids are not safe with you.”

   He further advised, relevantly:-

   “The children are settled and safe and in a loving home.  Do not expect them back tomorrow.”

10. The father maintained his position today during the course of his submissions.  The mother denied the allegations made against her by the father, which included that she was using ice and associating with drug dealers; and that she was “manic bipolar”.  The mother has been diagnosed with depression and prescribed antidepressants following separation and the father’s assault upon her. The mother’s evidence is that the father is emotionally controlling toward her and has attempted to manipulate her into reconciling with him.

Proceedings

1. The Court also has before it this day, and tendered in evidence, correspondence from “Community Kids” dated 9 April 2018 in respect of the two children the subject of the application, [X] born 2013; who is now aged four years and [Y] born on 2016, who is almost two years of age. That evidence provided by Mr R, indicated that both [X] and [Y] are meeting all of their developmental milestones and are progressing well in the “Community Kids” environment. 

2. Additionally, before the Court is correspondence tendered in evidence and marked as “Exhibit 2” from Mr A of 4 April 2018, the (employer omitted) of the mother. That evidence went to the father’s allegations, which are denied by the mother, of current illegal substance usage by the mother. That evidence, relevantly, is:-

   “I do not believe Ms Marwood has been on any illegal substance as it will directly and indirectly affect her work, moods and mind frame,  im (sic) well aware that Ms Marwood is prescribed medication for mental health issues stemming from a challenging upbringing but in my opinion she is stable and in a healthy mind set.”

3. The Court notes that Mr A is not able to give an opinion as to the mental health functioning of the mother. Nevertheless, his correspondence also described the mother as:-

   “…a truly remarkable young woman, her caring nature shows through in her passion for work,  her strengths are she is always organised, on time, well mannered, polite, happy go lucky and most of all she is reliable.”

Conclusion

1. During the mother’s care of the children there has been no Department of Family and Community Services or police involvement with either she or the children.  There are no protective concerns.

2. The children’s best interests are paramount and are served by their immediate return to the care of their mother, their primary carer in their lifetime and their sole carer following the parties’ separation.  The father’s submissions during the course of the hearing and complete refusal to abide any Court order is very concerning.  The fact that he has now, having heard of the making of the orders, removed the children from the day care centre in which he had placed them so as to remove them from their mother’s care, in breach of the Court’s orders, exhibits no regard for the emotional and physical wellbeing of the children. The children are at risk in his care.

3. The involvement of the Australian Federal Police in the recovery of the children will no doubt be a matter which might be somewhat traumatic for the children. The father has no regard for the welfare of the children and a complete lack of insight into the continuity of their care as provided by their mother and their attachment to her.  His behaviour in over-holding the children and now failing to return them to the mother means that the children could not be safe if any orders were to be made that they spend time with their father at the present time.  He will be required to put necessary evidence before the Court, which will include some evidence as to his prior criminal history, and the current circumstances in which he is required to reside in his parents’ home, for the Court to make any proper assessment of the risk he presents to the children.

4. Upon execution of the recovery order the matter can be listed before me on an urgent basis in Melbourne for further consideration if either party wishes for such a listing before the matter’s return in the next Albury circuit. 

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

Date: 17 May 2018