Morris and Herman

[2015] FamCA 1112

FAMILY COURT OF AUSTRALIA

MORRIS & HERMAN [2015] FamCA 1112

FAMILY LAW – CHILDREN – Interim parenting – Ex parte hearing – Where there is no appearance by the mother – Where the father makes serious allegations of child abuse perpetrated in the mother’s household and contends that the mother has relocated out of greater Sydney – Where the father seeks various interim orders – Where there are some concerns about the veracity of the allegations – Orders made to locate the child.

APPLICANT: Mr Morris

RESPONDENT: Ms Herman

FILE NUMBER: PAC 2302 of 2013

DATE DELIVERED: 8 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 23 November 2015

REPRESENTATION

APPLICANT - SELF-REPRESENTED LITIGANT: Mr Morris

RESPONDENT No appearance

Orders

1. That the Applicant be granted leave to proceed with this application ex parte.

2. That pursuant to section 67N(2) of the Family Law Act 1975 Centrelink furnish forthwith to the Family Court of Australia at Parramatta information about the location of the child B born … 2009 or Ms Herman born …1982 that is contained or comes into the records of Centrelink.

3. Otherwise the application for interim Orders is dismissed.

4. Upon receipt of the information referred to in Order 2 the matter is to be relisted before a Registrar to enable for further orders to be made relating to service of the Application.

5. These orders are to be served upon the Respondent in a manner in accordance with Orders made by the Registrar on 12 November 2015, namely:

   (a)By causing a message to be sent to the respondent’s mobile number within 24 hours to the following effect:

On 27 November 2015, an Order was made in proceedings (File Number PAC2302/2013) before the Family Court of Australia, Parramatta requesting that pursuant to section 67N(2) of the Family Law Act Centrelink furnish forthwith to the Family Court of Australia at Parramatta information about the location of the child B born … 2009 or Ms Herman born … 1982 that is contained or comes into the records of Centrelink

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morris & Herman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2302  of 2013

Mr Morris

Applicant

And

Ms Herman

Respondent

REASONS FOR JUDGMENT

1. This application concerns B, a little boy of six, the only child of parents who separated in October 2011.

2. In May 2013, the child’s mother commenced parenting proceedings which were resolved by final orders made by consent on 25 March 2015. Under those orders the mother was to have sole parental responsibility for the child who was to live with her and spend time with the father on alternate weekends and for defined time in the school holidays and on special days. Changeover was to occur at the child’s school or in a public place as agreed between the parties on a non-school day. The mother was also restrained from causing the child’s ordinary place of residence to be outside the greater Sydney area, unless first obtaining written agreement from the child’s father or through an order of the Court.

3. According to the father, at some time around late October 2015 the mother removed the child from his school and home in Sydney and she relocated with the child to Queensland.

4. On 10 November 2015 the father initiated parenting proceedings, seeking on an interim and final basis orders that the child live with him and that the Court make location and recovery orders and various other orders.

5. The mother has not engaged in the proceedings. On 12 November 2015 when the mother did not appear at the directions hearing before a Registrar, orders were made including that service of the Initiating Application and affidavits be effected by message to the respondent mother’s mobile phone and that the matter be listed for possible hearing on 19 November. On 19 November similar orders were made and the matter was fixed for interim hearing in the duty list on 23 November 2015.

6. According to the affidavit filed by the father, the respondent mother was served with the Initiating Application and affidavit and orders in accordance with the directions made on 19 November. Accordingly, I was satisfied that the respondent mother had been served.

7. At the interim hearing, although the father had sought a range of orders, including a recovery order he agreed that it was not in the best interests of the child for police to be involved in his recovery, especially as it is the father’s case that the child has been subject to significant trauma and disruption, particularly in recent times. The father did not press for the Recovery Order and, as I understand it, sought to proceed with the location orders and an Airport Watch List order as well as parenting orders with respect to the child’s living arrangements.

8. According to the father’s affidavit, the child lived with the mother, her partner and partner’s children in a suburb in Sydney at the time the orders were made. He contends that the mother only complied with her obligations under the orders until April 2015 and that since then the mother has not made the child available to spend time with the father during the school holidays at the end of Terms 2 and 3. He also alleges that the mother has moved interstate and relocated the child’s residence in contravention of the orders. In addition, the father alleges that the child has been subjected to “severe abuse” at the hands of the mother and her family and is showing signs of serious psychological harm. The basis upon which he seeks an Airport Watch List order is unclear, though he referred in submissions to a connection between the mother and the C Islands.

9. So far as the allegation that the mother has relocated interstate is concerned, the father alleges in his affidavit that on 27 October 2015 the mother unilaterally removed the child from his school. In his affidavit the father says that during the week prior to 27 October the child had been upset and told the father that he would be moving to Queensland. The father says that the child’s teacher reported similar conversations. The father also says that he spoke to the deputy principal of the child’s school who informed him that 28 October would be the child’s last day of school. The father says that the deputy principal informed him that he understood that the mother was relocating to the Gold Coast of Queensland. The father says that the last time he had contact with the child was 26 October and that the only contact he has had with the child’s mother since that date was through a text message between his wife and the child’s mother.

10. Although the father alleges many contraventions of the parenting orders from at least June 2015 and allegations about the inadequate care of the child and alleged abuse, as I understand it, no action was taken until the filing of the Initiating Application in November 2015. The more recent concerns that the father has about the child’s welfare date from 17 September 2015. This is 10 days after a final Apprehended Violence Order (AVO) was made in a Local Court against the father for the protection of the mother, which is in force for a period of 12 months. It contains extensive orders, including that the father must not approach or contact the mother by any means except through his legal representative or as authorised under a parenting order. The father confirmed at the interim hearing that this order had been made following a contested hearing.

11. The complaints that the father makes about the mother’s care of the child, according to the father’s affidavit are based upon complaints made to the father by the child that the mother had tried to drown him, regularly tells him that she hates him and hurts him “all the time” and that the mother’s partner and members of her family regularly assaulted him. The father also alleges that his wife observed the mother assaulting the child at a shopping centre on the day after the final AVO was made. The father says that he reported his concerns to Community Services and that a Joint Investigation Response Team (JIRT) investigation was carried out, and although it is unclear, I understand that JIRT has declined to take any further action. The father also alleges that police have been involved in the matter as he has voiced his concerns to them.

12. The father also alleges that the child had been placed in the care of a maternal aunt who is not an appropriate carer having had her own children removed by Community Services. He alleges that the child reported to him that when in the care of his aunt, the aunt was involved in drug dealing, asked the child to hide a knife and that there was police involvement.

13. In my view, there is some evidence to support the father’s contention that the mother has moved the child interstate contrary to the final orders made in March 2015. Although school records to the effect that the child has been removed from his school as contended have not been produced, the respondent mother’s non-engagement in these proceedings does support the father’s contention. In circumstances where the father is no longer seeking a Recovery Order in my view it is appropriate to make the location order as sought.

14. Although the father did not address the balance of the orders sought in the limited interim hearing in the course of a busy list, I understood him to be nonetheless seeking those orders on an interim basis. There is no evidence before the Court with respect to an order that the child be placed on the Airport Watch List. All of the evidence supporting the father’s application for parenting orders, which would amount to a complete change to the current parenting arrangements of this six your old child and which were entered into by consent, is contained within the father’s affidavit. If the father’s allegations are correct concerns arise about the father’s failure to take any steps in relation to allegations concerning serious abuse of the child and it appears that the father only commenced action after a final AVO was made against him for the protection of the mother for a period of 12 months. The father says that he has reported his concerns to appropriate agencies such as Community Services and the police and it appears that each have declined to take any further action. Although the issues that the father raises are significant factors with respect to the risk of harm to the child in the circumstances just outlined, I have significant concerns about the likelihood of those events having occurred. In circumstances where it appears highly likely that the mother will contest matters raised by the father, as the father himself still contests the basis of the AVO, notwithstanding that it has been made following a defended hearing, I cannot find that it would be in the best interest of the child to make the interim parenting orders sought by the father.

15. Accordingly, I make a orders 1 to 3 of the interim orders sought in the Initiating Application filed on 10 November 2015 and otherwise dismiss the application for interim orders. I direct that the Initiating Application be listed following service in the usual way.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 8 December 2015.

Associate: 

Date:  10 December 2015