Newett & Newett and Anor (No. 6)
[2020] FamCA 1056
•9 December 2020
FAMILY COURT OF AUSTRALIA
Newett & Newett and Anor (No. 6) [2020] FamCA 1056
File number(s): BRC 2179 of 2018 Judgment of: BAUMANN J Date of judgment: 9 December 2020 Catchwords: FAMILY LAW – CHILDREN – application for a recovery order – where the mother has withheld the children following unsupervised time – recovery order made Cases cited: Newett& Newett and Anor [2020] FamCA 470
Newett& Newett and Anor (No. 5) [2020] FamCA 1023
Rice & Asplund (1979) FLC 90-725
Russell & Close [1993] FamCA 62
Number of paragraphs: 29 Date of hearing: 9 December 2020 Place: Townsville Counsel for the Applicant: Mr M Alexander Solicitor for the Applicant: Damien Greer Lawyers First Respondent: Self-represented Second Respondent: Self-represented ORDERS
BRC 2179 of 2018 BETWEEN: MR NEWETT
Applicant
AND: MS NEWETT
First Respondent
MS ADLAM
Second Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
9 DECEMBER 2020
THE COURT ORDERS:
1.That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of 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 … 2011, Y born … 2013 and Z born … 2014 (“the children”) and to deliver the children to the Applicant father, MR NEWETT at MM Street, Suburb NN in the State of Queensland, or such other place as the Applicant father 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.
2.That the mother, her servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from the father’s care until further order of the Court.
3.That the children’s time with the mother pursuant to Order 1 of the Orders dated 2 October 2020 be suspended.
4.That the parties’ costs of today be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The application before me today is an application brought by the father of three young girls who have been the focus of highly contested parenting proceedings at least since Orders made by a Federal Circuit Court of Australia Judge in March 2019 when that Judge ordered a change of residence in relation to the three children, X, born in 2011, Y, born in 2013 and Z, born in 2014.
The application of the father for a recovery order has been brought on urgently. It is not appropriate in the history of this matter and in the ex tempore reasons which I am bound by law to deliver for any Orders I make today to go through the whole history of these proceedings other than to say they are more than adequately, in my view, identified in a number of judgments that have been delivered by myself over the last six months or so and in particular, the Reasons I delivered for making the Orders I made that the children’s time with the mother move to unsupervised time, those Orders having been made on 17 June 2020 (see Newett& Newett and Anor [2020] FamCA 470), and the Reasons I have delivered in relation to the trial that was due to commence before me for five days in respect of both parenting and property on 30 November (see Newett& Newett and Anor (No. 5) [2020] FamCA 1023). I rely upon the histories and background set out in those Reasons.
When the trial of the then undefended property proceedings completed on Tuesday, 1 December at approximately 2.30pm, the Court, in the absence of the mother, reserved judgment on the property proceedings and adjourned the parenting proceedings to a date in January 2021 for further directions. That was to allow time for a new Independent Children’s Lawyer (“ICL”) to be appointed. The previous ICL (Mr Carter) sought leave to withdraw from the proceedings, which leave was granted for Reasons also delivered.
When the property proceedings were to commence on Tuesday, 1 December, the mother chose at or around 11.56am on that day to leave the Court; she did not return. Her mother, who was a witness in the property proceedings and was ultimately cross-examined briefly by Mr McGregor for the father, and two persons who I described during the proceedings as “supporters” (who I now know from the evidence of Ms Adlam, the mother’s mother, were her sister, Ms PP, and her cousin, Ms QQ), remained in the Court throughout the whole of the undefended property proceedings and also for the discussion that took place at the end of the property proceedings. I observed one of them making notes just prior to the final adjournment.
In particular, as the record of those proceedings will indicate, Ms Adlam made a plea for the Court to assist her in arranging for the children to spend some time with her husband, who is in very poor health; lives in the City EE area and was desperate, understandably, to see his grandchildren.
The record of the transcript on that day will reveal that after a period of reflection and discussion, though without any Orders of the Court, the father, at that time, indicated that he was prepared to work with Ms Adlam to facilitate the children spending some hours with the maternal grandfather in City EE, if possible. I again stress no Orders were made.
At the conclusion of the hearing on 1 December, the Court ordered that the application by the mother contained in an Application in a Case filed 18 November 2020 be dismissed as the mother, having chosen to leave the Court, was not in the position to prosecute the application. In essence, the mother’s Application in a Case filed 18 November 2020 sought that the interim parenting arrangements be revisited within the concept of the Rice & Asplund principles, and her Application in a Case speaks for itself in that respect.
In short, the mother has, it is fair to say, since the Orders of a Judge in the Federal Circuit Court of Australia in March 2019, continued to persistently agitate by numerous Applications for a return to the earlier Orders of Judge Cassidy that the children live with her. The mother has continued and, today, persists in her submissions that the father is a risk to the children; needs to be placed in a psychiatric facility; is stalking and otherwise torturing her and that, for these reasons, her actions which I now turn to were justified.
In my view, the application of 18 November is not properly before me today, but, in any event, I have allowed the mother, almost uninterrupted, to identify why she says the incident which I now discuss justified her actions. I have heard those submissions. I have read her affidavit that she relies upon in respect of her Application in a Case filed 3 December and the Affidavit of her mother, Ms Adlam. It is fair to say that there is a repeat in the mother’s affidavit, at least, of some of the allegations earlier made by her which are still yet to be tested.
The Court is required to commence today’s hearing, a hearing where the father seeks that a recovery order issue as it is in the best interests of the children to do so, within the framework that, at least since March 2019, the children by Court Orders have been ordered to live with the father. The mother’s time with the children was initially supervised for over 12 months before the Orders I made in June 2020 to permit the children to spend time with the mother unsupervised during the day.
That Order which was made, as I say, on 17 June was extended by my Order made 2 October 2020 when the trial initially listed could not be held for the reasons, again, set out in earlier Reasons. Order 1 of the Orders made 2 October 2020 did not disturb, nor did the Orders made by the Court on 17 June, the interim Order that the children live with the father. Order 1 made 2 October 2020 was in these terms:
That the Orders dated 17 June 2020 be varied to provide that until further Order, the children, X born … 2011, Y born … 2013 and Z born … 2014 (“the children”) spend time with the mother each alternate weekend on Saturday and Sunday between 9.00am and 5.00pm, with the next scheduled visit to commence Saturday, 10 October 2020.
The Orders made by the Court on that day have not been the subject of any appeal. To be fair, it was, no doubt, the anticipation of both the father and the mother that the trial listed for 30 November would proceed. The positions of the parties, at least in terms of their case outlines for the final hearing, in respect to parenting is that the father was proposing the children continue to live with him and the mother have supervised time. The mother’s proposal is that the children live with her and the father have supervised time.
I now will turn to the events of 1 December. In this regard I accept that the evidence of both the mother, the father and the maternal grandmother, Ms Adlam, is untested. However, it seems to me clear from the material, and particularly the mother’s affidavit, where she says that she left the Court at approximately 10.30am on 1 December and she was in a distressed state. She says she went to a cafe to begin to prepare a Notice of Appeal.
As I have already indicated, her supporters, including her mother, remained in or about the Court until at least approximately 2.30pm on 1 December. The Court does not know what communication took place between the mother, her mother and her supporters. Accordingly, the mother had, it would seem, something in the order of three and a half hours to leave the city of Brisbane or the precincts of the Court. She did not do so, it seems.
She asserts that the father, effectively, by being in a public car park and parking his car, she says, some four or five car-spaces (but within 100 metres) of the car that she used to come to Brisbane, should be seen as a deliberate, provocative act of the father consistent with what she claims to be his psychopathic tendencies. It bears recall, that it is the father who is the named aggrieved person in respect of the current domestic violence order that was made by a Magistrate after trial and upon which an appeal launched by the mother to the District Court was dismissed. The evidence of the mother and her mother reveals that the father did not in any way approach the mother, although he did approach the grandmother after the mother had left.
There was a dispute as to what hand actions or gestures the mother may have directed to the father whilst he was in the car. The mother says, in effect, that she made a rude gesture. The father says that the mother made a “slitting” motion across her throat and raised a middle finger. Certainly, at paragraph 35 of her affidavit, the mother said that when she jumped in the lift to, as she would say, escape the father (who at this stage had not removed himself from the motor vehicle), that she “yelled a lot and was shaking uncontrollably”.
Her affidavit talks about the acute psychological reaction she was facing from the day’s events. She talks about her level of distress and her uncontrollable crying. The mother would ask me to accept that the father’s action are a manifestation of the torture and/or stalking that she says the father is guilty of. She has, as earlier indicated in previous Reasons, launched private criminal prosecutions against the father for his alleged criminal conduct, and other persons.
She was clearly aware of the terms of the domestic violence order the father has.-
He was perfectly entitled to sit in his car wherever he had parked it. He says, of course, that he was unaware that the car, a Brand LL (that apparently transported the mother to the hearing on 1 December), was used by the mother. The mother disputes that. Be that as it may, I accept that the events of 1 December for this mother, an unrepresented litigant and with the history of the litigation, were very difficult for her.
However, her actions thereafter do, at first blush, appear to be calculated and designed to take into effect a clear breach of the Orders made and confirmed as recently as 2 October 2020. The mother was not present in Court at the conclusion of the property proceedings by her own initiation. However, if she had been there, she would have heard (and it may well be that her mother told her) that I reminded Mr McGregor of Counsel for the father that there was no application before me to vary the interim Orders made in October 2020.
Notwithstanding the father’s final orders application as set out in his case outline, I did not vary my Orders so as to either suspend the mother’s time with the children or to impose a period of supervision upon the mother. In compliance with the Orders then existing, the father on Saturday, 5 December, delivered the children to the supervised changeover location and collected them that night. Consistent with the Orders of the Court then in existence, the father on Sunday, 6 December, delivered the children to the contact centre in the morning where the mother collected them.
He was entitled to expect, in terms of the Court Orders, to collect the children as he had on the Saturday, and as he had for many alternate weekends before then, at 5.00pm on Sunday, 6 December. Rather, the mother informed the supervisor at P Contact Centre, and the father says that supervisor informed him at approximately 4.15pm on Sunday, 6 December, that she would not be returning the children. She has not done so.
The mother has, on her evidence, justified her actions by, as her submissions reveal today, asserting a range of concerns she has about the father which have not yet been tested and which the mother continues to assert as true. Most are repeats of earlier submissions. She has, in every sense, taken the Court Orders and ignored them. Her justification today is that this is exactly what the father did in February 2019 when he held the children.
However, on that occasion, whilst he did do that, shortly thereafter a Judge of the Federal Circuit Court of Australia supported his decision and made an Order, in circumstances which have already been dealt with earlier in earlier Reasons, on an interim basis, to change residence. The circumstances of this case are such that I have heard nothing from the mother today that would encourage me, persuade me or require me as a matter of law on an interim basis to support the mother’s unilateral actions on Sunday, 6 December, to not comply with the Order of the Court.
The mother in her submissions (being a part-time law student, currently having her course in abeyance while so many proceedings are on foot) refers to a number of authorities. She refers, in particular, to a stream of authority including Russell & Close [1993] FamCA 62. I am well aware of the principles that need to be applied. If the Court was to make a recovery order, then it must apply the paramountcy principle of what is in the best interests of the children.
In my view, it is in the best interests of the children that they, consistent with the Orders of the Court, return to the father’s care immediately. I hold no real confidence that if I order the mother to hand the children over to the father that she would do so. Her actions and her submissions today bespeak an intention not to comply with orders of the Court.
The Court does not lightly make a recovery order which will, once made, require the police to immediately take action. To the extent that the father has little knowledge as to where the children are at the moment, the police are entitled to use all their endeavours and investigative powers to identify the whereabouts of the children. It will be open to the mother, so as to relieve the children of some distress that could be associated with changeover into the care of police initially, to hand the children into the police station. I have no confidence she will do so.
In the circumstances, for these Reasons, I propose to make an immediate recovery order. I also propose, because of my concerns that the mother will again not comply with the Orders, including returning the children to the father if they were to have time with her unsupervised under my current Orders, to suspend, until further Order, the Order for time that the children were to spend with the mother pursuant to Order 1 of Orders made 2 October 2020.
I propose to reserve the costs of today. That Order will issue now.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 10 December 2020
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