Masek & Jefferson (No 2)

[2021] FCCA 1661

FEDERAL CIRCUIT COURT OF AUSTRALIA

Masek & Jefferson (No 2) [2021] FCCA 1661

File number:	ADC 276 of 2016
Judgment of:	JUDGE YOUNG
Date of judgment:	17 June 2021
Catchwords:	FAMILY LAW – parenting – concerning a child who is fourteen years old – where the father makes an urgent application for a recovery order in respect of the child – where the mother has withheld the child in circumstances where she alleges the child has complained of being assaulted by the father – where the South Australia Police investigation into the alleged assault is not finalised – where the mother is currently residing with a person facing serious criminal charges – where the mother gave an undertaking not to reside with the person facing serious criminal charges – Court not satisfied it is appropriate to make the recovery order in circumstances where the criminal investigation is not finalised.
Legislation:	Family Law Act 1975 (Cth) s 91B
Number of paragraphs:	11
Date of hearing:	17 June 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Partridge of Hume Taylor & Co
Counsel for the Respondent:	Mr Robinson
Solicitor for the Respondent:	Lachlan McAuliffe Barrister & Solicitor

ORDERS

ADC 276 of 2016

BETWEEN:

MR MASEK

Applicant

AND:

MS JEFFERSON

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	17 JUNE 2021

UPON NOTING:

A.That the mother gave an undertaking to reside at the property located at B Street, Suburb C; and

B.That the mother is expected to travel to Adelaide with the child, W born in 2007, for the purpose of the child inclusive conference so that the Family Consultant can speak privately to the child.

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the mother be restrained and an injunction hereby issue restraining the mother from permitting the children W born in 2007, X born in 2011, Y born in 2013 and Z born in 2015 to come into contact with or be in the presence of Mr D.

2.That the mother be restrained and an injunction hereby issue restraining the mother from consuming illicit substances or permitting the child to be exposed to illicit substance use.

3.That pursuant to s.11F of the Family Law Act 1975, the parties and the child W born in 2007 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Adelaide on 17 July 2021 at 9:30am with the parties to telephone the Case Coordinator Child Dispute Services on 1300 352 000 to confirm their attendance NOTING that the family consultant is to have discretion as to how the parties attend.

4.That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

5.Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the child  born and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

6.Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

7.That pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for Child Protection be invited to intervene in these proceedings and to send a representative to the Court on the next occasion being 21 July 2021 at 11:00am.

8.That the matter is adjourned to 21 July 2021 at 11:00am for mention.

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 under the pseudonym Masek & Jefferson (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an urgent application for a recovery order of a child, W. W has just turned 14 years old.  There is a longstanding order that W and her three siblings live with the father.  The reason for that is the abundant evidence over the years that the mother lives an unstable lifestyle and there is some indications of past illicit drug use.

2. Based on the material that has been put before the Court over a number of years, the mother is an inappropriate carer for this child and indeed the other siblings.  This explains the final orders that have been made by this Court. 

3. However, early this year, approximately in January or February, W relocated to her mother’s care.  The father was unable to locate the mother and W for a significant period. A location order was necessitated because of the mother’s failure to advise the father of where the child was living.  It was tantamount to an abduction on the face of it. The father eventually located the mother and served her with proceedings. 

4. The mother filed a Response and supporting material yesterday, 16 June 2021. In the mother’s affidavit she alleged that W complained of having been assaulted by the father earlier in the year.  Enquiries were made of the Department for Child Protection (DCP) and South Australian Police (SAPOL) embedded officers connected to the Court Registry in Adelaide. I was advised by DCP that there is no investigation underway relating to the care of the child. However, SAPOL advised the Court that there had been an allegation that the father assaulted W. The allegation was made in March 2021 and the investigation still has not been finalised. 

5. Ms Partridge, counsel for the father, says that her client has not been interviewed. One might think that if the father has not been interviewed and SAPOL have not resolved the matter after three months, then SAPOL may not lay any charge against the father.  It is regrettable the matter has not been resolved in one way or another after some months.

6. As an indication of the very grave concerns about the mother’s credibility and reliability, in her affidavit she filed yesterday she said she was living with a Mr D.  I was informed by Ms Partridge that on Tuesday 15 June, Mr D faced the Suburb E Magistrates Court where, according to the Court List for the day, he was charged with possess or use a dangerous article, possess a controlled drug (not cannabis), and use or have possession of a prohibited weapon.  There was no mention of that in the mother’s affidavit material.  It seems to be quite implausible that the mother would not be aware that Mr D was charged with serious drug and other offences or that he had gone to court on 15 June 2021given he was living with the mother. 

7. In child proceedings, there is a duty of disclosure so if the mother was aware of those matters and failed to disclose them in her affidavit material, I consider that this would constitute misleading the Court and is a serious matter. However, as Mr Robinson pointed out, I am not in a position to make credibility findings at this stage as the mother was not available to be cross-examined. I asked whether she was present giving instructions to Mr Robinson or Mr Robinson’s solicitor and I was told she was not, otherwise I would have had her called to give evidence.  Nevertheless, she was, apparently, available to give instructions that she would undertake to move out of the house that she shared with Mr D and live at another address.  It is only enough to recite those facts to realise how unsatisfactory the situation is and how unsatisfactory the responses of the mother are. 

8. Nevertheless, given that there is an unresolved allegation of assault of the child by the father, I do not feel that I can make the order that I would have otherwise made without hesitation – that is a recovery order.  

9. There are some indications that what the child says about the father may not be entirely correct.  Ms Partridge tendered a portion of a text message which appeared to be between the child and the father from April 2021. The text message indicated that the child was on good terms with the father and was expressing regret for something that had happened and asked him for $10.  None of that is consistent with any serious allegation of assault of a child by the father.  However, SAPOL have confirmed that there is an outstanding allegation which they are seized with but have not yet finalised. As I say, it is unfortunate that SAPOL have not resolved the matter.

10. I propose to make the following orders:

    (1)That the parties attend on a Family Consultant in the Court with the child, W, on 12 July 2021 at 9.30 am for the purpose of a Child-Inclusive Conference. 

    (2)That an injunction be issued restraining the mother from allowing the children to come into any contact or be in the presence of Mr D.

    (3)That an injunction be issued restraining the mother from consuming illicit drugs and from exposing the children to consumption of illicit drugs.

    (4)That pursuant to section 91B of the Family Law Act 1975 (Cth) I invite the Minister for Child Protection to intervene in these proceedings.

    (5)That an Independent Children’s Lawyer be appointed; and

    (6)The matter be adjourned to 21 July 2021 at 11:00am

11. Further, I will also note that the mother is expected travel to the Adelaide Registry with the child for the purpose of the Child-Inclusive Conference interview so that the Family Consultant may speak privately to the child.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       21 July 2021