Ngozi and Tesamino

[2013] FamCA 159

FAMILY COURT OF AUSTRALIA

NGOZI & TESAMINO [2013] FamCA 159

FAMILY LAW – CHILDREN – Recovery order

APPLICANT: Mr Ngozi

RESPONDENT: Ms Tesamino

FILE NUMBER: SYC 7017 of 2012

DATE DELIVERED: 11 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 11 March 2013

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: No appearance for or on behalf of the respondent

Orders

1. Pursuant to s 67Q of the Family Law Act 1975 (Cth) a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child (M born … April 1998) and to return the said child to the Applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where there is at any time reasonable cause to believe that the said child may be found.

2. The recovery order remains in force until 6 May 2013.

3. PENDING FURTHER ORDER Ms Tesamino is prohibited from again taking possession of the child.

4. That all outstanding applications are transferred to the Federal Magistrates Court.

5. It is requested that the matter be listed into a duty list in the Federal Magistrates Court as soon as possible.

6. IT IS NOTED the Federal Magistrates Court file is SYC1720/2008.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ngozi & Tesamino 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 SYDNEY

FILE NUMBER: SYC 7017 of 2012

Mr  Ngozi

Applicant

And

Ms Tesamino

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application by Mr Ngozi (“the applicant) filed 27 November 2012 for a recovery order.  The recovery order relates to Mr Ngozi’s eldest child, M, who was born on in April 1998.  There is an extensive history of litigation in relation to M and her siblings, B and C, in the Federal Magistrates Court.

3. The current orders which I observe were made with the participation of an Independent Children’s Lawyer and following the provision of a number of expert reports from a psychologist provide that the applicant has sole parental responsibility for the children, and that the children live with him.  Orders in favour of the children spending time with the mother were revoked.  It has been necessary, once before, for the applicant to obtain a recovery order in relation to M: on that occasion from her mother and half-sister.

4. In addition to extensive litigation in the Federal Magistrates Court, there has also been significant litigation in State Magistrates Courts.  Essentially, these related to allegations of violence and other anti-social behaviour said to amount to a risk to the children from the applicant.  Those applications have been considered at defended hearings and dismissed.  They have resulted in criticisms from the presiding magistrates about the efficacy of the evidence called in the prosecution cases on behalf of the mother, on one occasion also M, such that even at the standard of proof required to secure an apprehended violence order, the evidence was sufficiently wanting that orders were not made.

5. The catalyst for this application is an event in September 2012, when confronted by the applicant about him finding cigarette butts and an ounce of marijuana in M’s possession, there was an argument between the applicant and M.  The argument was sufficiently loud to prompt a neighbour to telephone police and apparently raised concern about a domestic disturbance.  Police attended and spoke with the applicant and M.  The applicant decided against informing the police about the marijuana he found in M’s possession or her behaviour on that occasion when she smashed items in her brother’s room and a mirror.

6. Importantly, police spoke with M and did not remove her.  I infer from this that police were satisfied that M was not at risk if she remained in her father’s care.  The next morning, M left for school and has not returned.  She has deleted the applicant from her Facebook page and the last reference he had was of her description of him as a control freak.

7. The applicant agrees that he has needed to exercise parental authority over M in order to have her attend school, to moderate her use of Facebook and to abide by age appropriate rules designed to enable her to achieve a sound education and be safe. 

8. In any event, after M left, she made allegations that on the evening police attended and before they attended, the applicant assaulted her.  The applicant was then charged with common assault and an interim ADVO was taken out against him.  Those applications were heard at N Town Local Court on 9 November 2012.  M, her mother and one of M’s school teachers, as well as three police officers and the applicant gave evidence.  The Magistrate dismissed the assault charge and the application for an apprehended violence order.  Following the hearing, at the applicant’s behest, his counsel approached M and invited her to return home.  M declined and left with her half-sister, Ms Tesamino.  The applicant has not heard from M since and he believes that she is living with her half-sister.  The applicant does not know where Ms Tesamino lives or have her contact numbers.

9. When he came before the Court on 25 February 2012, Johnson J directed that the applicant contact police and request that they arrange service of a sealed copy of the application and affidavit upon Ms Tesamino.  The applicant did this.  However, police declined.  His evidence today is that while he was at L Town Police Station, a sergeant contacted Ms Tesamino and informed her of this application.  She was asked to provide an address so that service could be effected but she declined.  The sergeant informed the applicant that he told Ms Tesamino about the nature of the application and that it was before this Court today.  There is no appearance by or on behalf of Ms Tesamino today.

10. I have contemplated whether I should again adjourn this application and make an order for a Commonwealth Information Order, the idea being that that might reveal an address where service of the application could be effected on the respondent.  However, that would take more time and in circumstances where the applicant presents a fairly compelling case, that this teenager is at risk, a further adjournment is contraindicated.

11. I am very troubled about the idea that a recovery order issue in relation to a child M’s age and as I have indicated to the applicant, there is a point where this Court can do little to secure a child’s presence in a home if the child is determined, at the age of nearly 15, to not be there.  There is a point at which if the child is at risk, as M appears to be, that the child protection concerns need to be handled by the State.  It may well be we are very close to that point.

12. But notwithstanding these misgivings, it is appropriate that a recovery order is made and that the order recently made in the Federal Magistrates Court for this child to live with the applicant is given effect to.  It is quite clear to me that after a very exhaustive examination of the children’s circumstances and the applicant and mother’s parenting capacities, that the Court regarded the children’s best interests as being advanced by the orders already discussed in favour of the applicant.

13. It does appear likely that the police would be able to give effect to a recovery order fairly promptly.  With that in mind, rather than have the recovery order continue for 12 months, it will continue for two months.  That gives the applicant sufficient time to settle M back into his home, if that is achievable.  If it is not, then the matter will need to be considered again by the Federal Magistrates Court, perhaps in the alternative, a children’s court.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 11 March 2013.

Associate:     

Date:              19 March 2013