NELSON & GREY

[2015] FamCA 62

FAMILY COURT OF AUSTRALIA

NELSON & GREY [2015] FamCA 62

FAMILY LAW – PARENTING – Application for recovery order – Where final orders made by consent November 2014 – Where father in response to recovery application seeks change of residence – Where history of ongoing unfounded complaints by the father and his partner in relation to the child in the mother’s care – Consideration of the child’s best interests – Child to be returned to the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 67Q, 68Q

Marvel (No. 2) [2010] FamCAFC 101

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Nelson

RESPONDENT: Mr Grey

FILE NUMBER: PAC 3142 of 2012

DATE DELIVERED: 9 February 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 9 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Brien

SOLICITOR FOR THE APPLICANT: Mason Mia & Associates – Solicitors & Advocates

SOLICITOR FOR THE RESPONDENT: Philip Sim & Associates

Orders

1. The Father do all things necessary to cause the child B born … 2010 to be delivered into the care of the Child Dispute Services section of the Parramatta Registry of the Family Court of Australia by no later than 4:00pm today.

2. That the Father or any servant or agent on his behalf at the conclusion of these proceedings leave the precincts and not approach or contact Child Dispute Services officers of this Court.

3. The Mother have liberty to remove the child from the care of Child Dispute Services and thereafter the child remain in the Mother’s primary care pursuant to orders made on 1 November 2014.

4. Pending further order, the Father’s time with the child be suspended.

5. A Recovery Order issue to facilitate the return of the child to the Mother and that that Recovery Order lie in office and only be activated in circumstances whereby the Independent Children’s Lawyer notifies the court that there are circumstances warranting the issue of the Recovery Order.

6. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child B born … 2010 and the Legal Aid Commission of New South Wales is requested to provide such representation and the Court requests that Ms Friend of Legal Aid NSW C Town be appointed to represent the child.

7. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

8. The matter is adjourned to Monday 2 March 2015 at 9:30am for a further Case Management hearing.

9. Upon noting that the parenting orders made today and the final parenting orders made on 11 November 2014 may be inconsistent with any variation of the Apprehended Violence Order made on 10 June 2014 with such application listed before the Suburb D Local Court on 17 February 2015 for the reasons given in the Court’s reasons for judgment today the terms of the orders made today and on 11 November 2014 shall apply notwithstanding any inconsistency with the current or any variation of the Apprehend Violence Order.

10. Leave is granted to the Independent Children’s Lawyer to provide a copy of the Court’s reasons for judgment today to the relevant officer at Suburb D Police Station in the context of the present application for a variation of the final Apprehended Violence Order.

IT IS NOTED THAT:

(A)Subject to the consent of the parties and the Independent Children’s Lawyer on the adjourned date it is proposed that the child’s time with the Father resume as and from 2 March 2015.

(B)The Court will forward a copy of orders made today to the Registrar, Local Court Suburb D and the Commissioner NSW Police Service and the appropriate officer Department of Family and Community Services.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nelson & Grey 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 3142 of 2012

Ms Nelson

Applicant

And

Mr Grey

Respondent

REASONS FOR JUDGMENT

1. These are proceedings commenced by the mother by application filed on 5 February 2015, in respect of which she was granted leave to serve short notice to have the matter returnable before the Court today, 9 February 2015. 

2. The mother seeks orders in relation to the child, B, the child having being born in 2010, and being now five years of age. 

3. The mother’s application is brought in circumstances where the parties in this court in C Town resolved the question of parenting in relation to the child by consent on 11 November 2014. 

4. In summary the orders made on that day provided:

   a)For the parents to have equal shared parental responsibility for the child;

   b)For the child to live with the mother;

   c)The child to spend time with the father as defined, being essentially two weekends in every three week cycle during school term and full block periods during school holidays; and

   d)Various other specific issues orders.   

5. The mother’s application seeks orders today that seek the issue of a recovery order in the usual terms under section 67Q of the Act for the return of the child, the child, to her care.

6. Otherwise, she seeks an order that orders of 11 November 2014 be confirmed and that the father pay the mother’s costs of this application. 

7. Her application is supported by her affidavit filed on 5 February 2015. 

8. The father is presently 23 years of age. The mother 22. The parents’ relationship was from November 2007 until separation November 2011. 

9. The regrettable circumstance was that following separation final parenting orders weren’t made for a period of almost three years, during which there were significant developments on both sides in relation to the child. 

10. The mother in her affidavit refers to the existing orders made by consent by this court on 11 November 2014 and says that, since that date, parenting arrangements – as reflected in the orders – have been in place, with the child residing with her at E Town and the child spending time with the father in the Suburb D area. 

11. There is currently an old AVO order in existence between the parties being a final order being made on 10 June 2014 at Suburb F Local Court. 

12. It appears that the final order was made in the absence of the mother, but the orders effectively provide for the mother, for a period of two years – that is, from 10 June 2014 until 9 June 2016 – to be restrained from assaulting, molesting, harassing, threatening or otherwise interfering with the protected person – that is, the child B, born in 2010 – and being restrained from engaging in conduct that intimidates the child, or stalking the child or a person with whom the child has a domestic relationship. 

13. The mother was also restrained from approaching or contacting the child by any means whatsoever, except through her legal representatives or as authorised by a parenting order under the Family Law Act 1975.  There have been, during the course of litigation in these proceedings, various orders in relation to the child and the child’s time with both the mother and father. 

14. The circumstances of the existing AVO were known to the parties when they consented to final orders in November 2014, placing the child in the primary care of the mother, and that arrangement does not conflict with the present AVO order. 

15. The mother says that, for the purposes of the current parenting orders she did on about 6:00pm on 30 January 2015 attend G Town McDonald’s Family Restaurant for changeovers as contemplated by the orders. She says at the time of changeover the father informed her that he had spoken to his solicitor and that his companion Ms I, his mother and he would be taking the child to her first day of school in E Town – which was to be the following Monday – and the mother was not to be collecting the child on Sunday at the child’s expected return to the G Town McDonald’s. 

16. The father gives a different version of the incident.  But, in any event, the mother says that on Sunday 1 February 2015 she received a message from the father saying that he would not be making the child available for collection in accordance with the orders, as there was a matter that will be in front of the Court on Tuesday.

17. She says that subsequently she has endeavoured to contact the father but to no avail. 

18. Thereafter, police attended at her home and she was served with an application to vary the existing final AVO order, that application being first listed before the Suburb D Local Court on 17 February 2015. 

19. The provisional AVO application for variation seems to have been taken out by the police at the instigation of the father.  However, as required, because it relates to the child, the complainant is the police.  The terms of the provisional order sought by the father seek to vary the final order, in that the provision for the order to be subject to orders made by the Family Court is to be deleted, and that the mother thus be restrained from approaching or contacting the child effectively in any way whatsoever. 

20. The mother says, in the circumstances, she seeks an order for the immediate return of the child to her care. 

21. The father, for his part, filed a response today 9 February 2015 and seeks final orders:

    a)That orders made on 11 November 2014 be suspended;

    b)That the child live with the father; and

    c)The child spend time with the mother as agreed. 

22. He seeks interim orders that provide for:

    a)The orders made on 11 November 2014 be suspended;

    b)That the child live with the father; and

    c)The mother’s time with the child be at a supervised contact centre. 

23. The father relies upon his affidavit, sworn on 8 February 2015 and filed on 9 February 2015. 

24. The crux of his complaint is that, at changeover on 30 January 2015, he alleges upon arriving at his home in Suburb D at about 7:00pm he observed some bruising on the child. 

25. When inquiring of the child, “How did you get the bruises?”, he asserts the child said:

    Mummy grabbed me and dragged me up to my room, put me on the bed and smacked my bum. She then slammed the door.

    The father says that he observed bruises and required his partner, Ms I, to also examine the child.  He says his partner indicated to him and the father also observed the child had what he described as a large bruise on her bottom. 

26. Regrettably and especially having regard to the previous matters that have arisen in this ongoing litigation, the father and his partner took no photographs of the bruising observed by them, nor is there any photographic evidence of the alleged bruising before the Court today. 

27. However, the father’s partner Ms I, has taken the child to the local medical centre, Medicare Local H Town, where the child was seen by Dr J.  Dr J provides a short overview (Exh D).  In reality, it appears to be a note back to the child’s treating general practitioner, and says in his notes:

    The stepmother and father have noticed bruising to the patient’s lower back bottom and left upper arm.  Not present prior to the access visit.  The stepmother would like the bruising reviewed and documented.  

28. The doctor’s report that is provided to the Court seems to be a two page document, but incomplete, as the doctor’s own observations of the child do not appear to be in the report.  His notation is:

    Bruised mark –

    That is, one mark –

    as mentioned above –

    But it appears, in copying, the doctor’s observation and measurements of the bruise have not been included in the copy.  The father’s partner took it upon herself to take the child to the local police station and facilitated a provisional application to vary the present AVO order being taken out in the terms as referred to above. 

29. As a consequence of the allegations, the child was interviewed by the Joint Investigation and Response Team (JIRT), and they have been able to make some information available to the former Independent Children’s Lawyer, Ms Friend, in these proceedings who appeared as courtesy to the court and who will shortly be reappointed. The Court was informed that the child was interviewed by JIRT and that JIRT have resolved not to intervene in the proceedings and have simply referred the allegations back to the police at Suburb D. 

30. Ms Friend, acting in the best interests of the child, was able to speak to an officer at Suburb D Police Station – not the investigating officer – and she was informed that the relevant police had not had the opportunity of viewing the CD of the interview, but that the police position was that they are simply now exercising their statutory obligation where there is a complaint to seek an order from the Court purportedly for the protection of the child. 

31. The father, for his part, says that he spoke to Detective K at Suburb D Police Station and that detective prepared an application for the variation of the AVO orders to be served on the mother. 

32. The solicitors for the mother were informed by the father’s solicitor as to the allegations and the child remains in the father’s care. 

33. As a consequence of an order made earlier today, the child is presently at Child Dispute Services in this registry, pending the outcome of the Court’s determination. 

34. This matter has had a sorry history. The previous affidavits filed in the context of the defended hearing at which the matter was resolved in November – particularly the affidavit by the father sworn on 20 October 2014 (Exh A) demonstrates a litany of complaints by himself and his present companion in relation to the child in the care of the mother.  It is important to note that notwithstanding those allegations by the father and his partner, that have involved various JIRT interventions, interventions by the Department of Family and Community Services and the police, none of the allegations made in the context of the previous proceedings have been substantiated. 

35. More importantly at the scheduled hearing in November 2014, the parties were  confronted by the Family Report (Exh C) prepared by Mr L – the family consultant attached to the C Town Registry of this Court – dated 23 July 2014. 

36. It is important to note the report contains details of the family consultant’s own interviews with the child who, at the time of interview, was four years of age, especially at paragraphs 53 through to 58 of that report the child gives detailed responses to the family consultant that effectively each and every one of her allegations, made in relation to the mother, were made at the instigation of the father’s partner, Ms I.

37. The family report goes on to say in paragraph 75:

    [B] was also asked about the allegation that [Ms Nelson] had punched her in the eye and she replied quietly “that wasn’t true”, before adding “Sometimes she does hurt me” and “[Ms Nelson] hurts me ... she said she doesn’t hurt me but she does”, before going on to recant these allegations as well. When asked at one point to expand on the comment that she had made, the child did not respond to the question but rather replied with the words, “I say it was [Ms I’s] fault, because she told me to say that … it is my fault that I tell everyone about that”.  

38. The family consultant – at paragraph 80 – says this:

    The core of my concerns about the increasingly serious, but seemingly unsubstantiated, claims of abuse and neglect by [Ms Nelson] … are the questions it raises about [Mr Grey] (and [Ms Nelson’s]) capacity to facilitate and encourage the child’s relationship with her mother in the future. [Mr Grey] appears to be so strongly convinced the child is at serious risk in [Ms Nelson’s] care, that I fear he may have reached false-positive conclusions, which are leading him to emphasise the child’s need for protection, at the expense of her need for support and encouragement to have ongoing and an unfettered relationship with her mother. 

39. At 84, the family consultant says:

    Even if we assume that the child’s comments about [Ms I] do not constituted evidence of coaching, serious concerns exist in my mind about whether she may be implicated in exacerbating the present dispute unnecessarily. This hypothesis initially arose during the preparation of the previous family report and it was recommended to [Mr Grey] that he ensure [Ms I] not attend any further changeover events.

40. The family consultant says at 87:

    Other concerns about [Ms I] relate to her contacting police on 18^th July 2013 to express concern for the child’s welfare whilst in Ms Nelson’s care.  Police subsequently conducted a welfare check and sighted the child in [Ms Nelson’s] care, and found no problems or concerns. The investigating officer recorded that: “Police are of the opinion that all parties are currently in a family court … dispute whereby each party are reporting similar incidents to police … [Nelson] explained that police have attended previously (up to three times) with similar outcomes”.  Although investigating officers clearly believed this was the latest example of a bi-directional process in which both parties had made questionable complaints for tactical purposes relating to the present family law dispute, the police and FACS records indicate that most or all of these had been in one direction, with [Ms I] appearing to the primary instigator.

41. In a summary and conclusions, the family consultant recommended at paragraph 96-97:

    … if the Court forms the view that these allegations are not substantiated, very serious questions will need to be asked about whether the child can realistically continue to live primarily with the father.

    97. The reason for this is that if [Mr Grey] (and Ms I) are found to be holding strong, negative, but unfounded beliefs about the child’s safety in [Ms Nelson’s] care, this context is likely to have a very serious and negative impact on the child, and her relationship with her mother. The holding of false-positive beliefs by a parent/carer is not a benign psychological environment for children, given that young children are highly ‘suggestible’, and:

    “if … children continue to think about the suggested events and to talk about them, and to hear others around them talk about them, their beliefs in the reality of those events may solidify” (Bruck & Ceci, 1995, pp 302).

42. In the context of that report and following what appeared to me as the listed trial judge in C Town significantly protracted negotiations, the parties provided to the Court a document in respect of which consent orders were made on 11 November 2014. 

43. It is of significant concern that in consenting to the orders – as he did – the father, by inference, was acknowledging the grave and serious concerns of the family consultant in relation to the litany and history of false allegations made in relation to this child with the consent orders providing for a change of primary residence from the father to the mother..

44. The application before the Court is an interim parenting application.  The criteria in relation to the issue of a recovery order is the best interests of the subject child. 

45. The nature of interim proceedings has been discussed by the Full Court in Marvel (No. 2) [2010] FamCAFC 101;

    120.     As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

    …

    122.     In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

    In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

    123.     Later, at paragraph 100 their Honours amplified their comments and said:

    The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

1. The principles relating to parenting and interim parenting proceedings are well settled in Goode & Goode (2006) FLC 93-286. Section 60B outlines the objects and principles relating to parenting.

2. Section 60CA provides that in deciding to whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. The Court is directed to the provisions of section 60CC that outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child.

4. Section 61DA provides the presumption as to equal shared parental responsibility and various matters then follow if that presumption is in place.

5. In this case, there is already an order for shared parental responsibility and the Court does not need to determine that. 

6. In the context of the present application for a recovery order, the Court has had regard to the considerations set out in section 60CC of the legislation.

7. The Court is required to look at the benefit to the child of having a meaningful relationship with both of the child’s parents, the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence.  In the context of more recent amendments to the legislation, the protective concerns are to have primacy in relation to the primary considerations.

8. The Court has grave concerns in relation to the circumstances leading to the present application before the Court.  Firstly in that it was the father’s partner that took the child to the doctor.  It was the father’s partner who complained to the police.  It seems to be simply a repetition of what has gone on before.  The father was in a perfect position to adduce evidence to his observations, as to bruising on the child, and the only observation that we have is the father’s visual observation that gives no idea as to degree or size or otherwise.  The doctor’s report refers to one bruised mark.  What that was, where it was and what its measurements were, nobody knows. 

9. However, in all of the circumstances, the Court is very conscious of the prospective damage being done to this child by her being unilaterally removed from her mother’s care in circumstances where the parties reach an agreement as to this child’s long-term placement back in November of last year. 

10. The Court also is to have regard to the additional considerations set out in section 60CC(3) of the legislation.

11. The child is of tender years and the child’s views would have little impact in an application such as this. 

12. The nature of the child’s relationship with each of the parents is that the mother is now the primary carer of the child by reason of an agreement between the parties encapsulated in final Court orders on 11 November 2014.  The father has a substantial and significant relationship with the child.

13. The child also has a relationship with the maternal great-grandparents – with whom the mother resides.  The child has a relationship with a half-sibling living in the father’s household and the father’s partner – who has – it appears presented as one of the major difficulties in this matter ongoing. Whether the father’s relationship with the child should be in the presence or company of his partner is yet to be determined.

14. The only other circumstance that is relevant in the present or significantly relevant is the likely effect of change in the child’s circumstances.  This child has had a number of changes in terms of location of residence and primary care over the years.  That arrangement was resolved and the child has been in the mother’s primary care since early November 2014.  A further disruption in the child’s care in those settled circumstances – particularly where the child was due to commence schooling as arranged by the mother, on 2 February 2015 has not yet happened. The child has not yet commenced to attend school. By reason of the father’s conduct the child missed her first day at school; she can never get that back. The father did not take the child as he told the mother to her first day of school but simply retained the child in his care.

15. It is important that the child be restored to her settled circumstance as a consequence of orders made in November 2014. 

16. The practical considerations of the child spending time with and communicating with the parent are set out in the orders made on 11 November 2014. 

17. The capacity of each of the child’s parents that provide for the needs of the child – including her emotional and intellectual needs – as a consequence of the father’s more recent conduct in retaining the child is a matter of conjecture and may well require a determination as to the nature of his ongoing relationship with the child.

18. The child is young, about to commence school and needs a settled circumstance relating to school. That is the relevance of the child’s maturity. 

19. The Court also has regard to the attitude to the child and the responsibilities of the parent or demonstrated by each of the child’s parents. Once again, the father’s attitude is subject to some query as a consequence of the matters that occurred over the weekend of 30 January 2015.

20. The circumstances of the current family violence order are referred to above and there is a present application for that order to be varied in circumstances where – effectively on the father’s application – there would be an order that prevents the child from seeing the mother at all. 

21. The Court proposes to make an order under section 68Q so that any order made by the Court today will take precedence over any apprehended violence order or the variation to the present final order as sought in the current proceedings before the Suburb D Local Court.

22. In all of the circumstances, the Court is satisfied that it is appropriate for the child to be returned to the care of the mother.  The child is presently in the registry.

23. In the circumstances the ICL, who supports the return of the child to the mother, will be reappointed.

24. Orders reflecting the reasons above will be made.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 February 2015.

Associate: 

Date:  9 February 2015