NORWOOD & NORWOOD

[2017] FCCA 1285

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORWOOD & NORWOOD [2017] FCCA 1285

Catchwords:
FAMILY LAW – Recovery order – where the child is currently residing with the mother – where there are allegations that the child has been exposed to family violence while in the care of the father – where the child has been living with the father for six years – where it is in the child’s best interest to be returned to the father.

Legislation:

Family Law Act 1975 (Cth), ss.67U, 11F, 60CC, 61DA, 65DAA, 91B, 65DA(2), 67Z, 60CA

Applicant: MR NORWOOD

Respondent: MS NORWOOD

File Number: DGC 2111 of 2010

Judgment of: Judge Small

Hearing date: 2 May 2017

Date of Last Submission: 2 May 2017

Delivered at: Dandenong

Delivered on: 2 May 2017

REPRESENTATION

Counsel for the Applicant: Self-Represented

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: Ms Theoharopoulou

Solicitors for the Respondent: Leonard And Associates

Counsel for the Independent Children’s Lawyer: Mr Bult

Solicitors for the Independent Children’s Lawyer: Madison Branson Lawyers

ORDERS

1. Pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all 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 child X, female, born (omitted) 2005 (“the child”) and to deliver the child to the Applicant Father MR NORWOOD born (omitted) 1982  (“the Applicant Father”) at (omitted) 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 child may be found.

2. The Respondent Mother (“the Respondent Mother”) is hereby restrained from removing the child from the Applicant Father until further order.

3. The Respondent Mother deliver the child to the father at his parents’ house at (omitted) by 8:00pm this day.

4. The Recovery Order lie on the Court file pending confirmation that the Respondent Mother has complied with paragraph 3 and if no confirmation is received by 4:00pm on the 3 May 2017 the Recovery Order shall issue.

5. The Orders of 27 October 2010 remain in full force and effect.

6. The Applicant Father and Respondent Mother are hereby restrained by Injunction from: -

   (a)Denigrating each other, within the hearing or presence of X, either personally or through their servants or agents;

   (b)discussing any aspect of this Court Proceeding or these Orders, or the conflict between the Applicant and the Respondent, within the hearing or presence of X, either personally or through their servants or agents;

   (c)inappropriately physically or verbally disciplining X, either personally or through their servants or agents.

7. The Applicant Father be restrained from having a blood alcohol level of 0.05 or greater while the child is in his care.

8. The Applicant Father be restrained from exposing the child to any form of family violence.

9. The Father ensures that his wife Ms L make file and serve an Affidavit in response to the allegations made by the Respondent Mother within 14 days.

10. The Mother be restrained from exposing the child to any inappropriate adult behaviour.

11. Pursuant to section 11F of the Family Law Act 1975, the parties and the child X born (omitted) 2005 attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference at (omitted), on 19 June 2017 and:

    (a)the Father Mr Norwood and child X to attend at 9.15 am; and

    (b)the Mother Ms Norwood to attend at 10.15 am.

12. Pursuant to Order 13 above the Family Consultant shall provide a written memorandum to the Court and to the parties with such written memorandum to be released no later than 21 June 2017.

13. The written memorandum deal with the following matters:

    (a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those views;

    (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the Family Consultant considers important to the welfare or best interests of the child.

14. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.

15. The Family Consultant be granted leave to inspect all subpoenaed material released in these proceedings.

16. The matter otherwise be adjourned to the Duty List on 27 June 2017 at 10:00am in the Federal Circuit Court of Australia at Dandenong.

17. These Orders be expedited forthwith.

IT IS REQUESTED THAT:

1. Pursuant to Section 91B of the Family Law Act 1975 it is requested the Department of Health & Human Services, Victoria intervene in these proceedings.

2. Upon request from the said Authority/Department/Agency the Court do provide to it copies of all documentation relevant to the proceedings before the Court to enable it to consider the request to intervene in the proceedings.

AND THE COURT NOTES THAT:

A.The Australian Federal Police and Officers of the States and Territories Police Forces are requested to give the Applicant Father such assistance as he requires when the Order is served on the Respondent Mother.

B.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Norwood & Norwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2111 of 2010

MR NORWOOD

Applicant

And

MS NORWOOD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The matter of Norwood comes before me today for mention in circumstances where the father, Mr Norwood, filed an application for a recovery order in relation to his daughter – or the parties’ daughter X born (omitted) 2005, which makes her approaching her 12^th birthday. 

2. Mr Norwood bases his claim on orders that were made by consent by the parties on 27 October 2010, when both parties were represented, and those orders were made before then-Federal Magistrate Phipps. 

3. Those orders provided for the parties to have equal shared parental responsibility for X, that X live with their father, and then sets out a regime whereby X spends time with her mother.

4. On 7 March this year, the father says without notice, X was picked up by her maternal grandmother from her school camp and, since that date, she has been living with her mother.  She has not seen her father since that date.  I think there have been some attempts at phone calls, but the father says those have been most unsatisfactory.  The mother was present at the last hearing, which was on 27 April before Judge Burchardt, and the parties were both in Court at that time.

5. Judge Burchardt made an order that the matter be adjourned to today, and he made an order appointing an Independent Children's Lawyer, and the Court is very grateful both to Victoria Legal Aid for appointing an Independent Children's Lawyer at such short notice, and, indeed, to Mr Bult, who has appeared today as the Independent Children's Lawyer. 

6. The father’s affidavit material, in essence, sets out that the mother has mental health problems.

7. He is critical of the way she lives and says (and there is no doubt or dispute about this) that the mother is currently pregnant, and that the father of that child is a 17 year old boy with whom she is living.  There has also been another person involved in that relationship in what the 17 year old boy, who has filed an affidavit (which he is not empowered to do because he is not an adult), has called a “polyamorous relationship”; in other words, there were three people in the relationship.

8. The mother’s material, which she prepared herself and which was filed only yesterday, although she is represented today on a late grant of legal assistance, says that the father is a violent man, that he has perpetrated significant physical violence against his current wife, including choking her and throwing her through a window. 

9. The father tells me today that that is an utter fabrication, and there has been some text messaging between the parties where the mother has attempted to impose conditions upon the father having any contact with X, even by telephone, and those conditions include not being able to tell X that he misses her or that he loves her, in fact.

10. The mother makes allegations.  They are allegations said to have been made by X because the mother, in fact, has not, I think, had intimate knowledge of the father’s household for some time.  The orders of 2010 apparently were working well until early this year.  Nobody has tried to change them, and I note particularly that the mother has not tried to change those orders in the six and a half years that they have been in force.  It is a very difficult matter when I have two parents who are alleged to be less than competent parents.

11. If what the mother says is true, then X has been living in a very violent household, and that cannot help but have affected her emotionally and psychologically and even intellectually if that has been going on for a long time.  If what the father says is true, then the mother lives in what might be considered by some people – and I am making no judgment here on that – what is happening in that household is, as far as I can tell, legal – but some people would say that it was unsavoury and inappropriate for a 31 year old woman to be having a relationship with a 17 year old boy.

12. This is not an easy decision to make. I told the parties at the beginning of this submissions hearing that my instinct was to leave X where she was and order a section 11F child dispute conference. That was before any submissions were made.

13. Mr Norwood, in his submissions, confirms that he wants a recovery order to issue so that X can return to his care, where she has been for the last 6 and a half years – he says without any problem.  He says that she has grown up in that community, she has been to school, and I think she is in grade 6 this year.

14. And she has been at the school in the community where she lives since Prep, and she has a community of friends and neighbours with whom she has grown up.  He says that she was in the (hobby omitted) when living with him – attending (hobby omitted).  He denies family violence.  He says there was no physical violence at all.  He says the police have never been called to his home.  He says only that there have only been some arguments when money was short, which might be explainable, and, depending on their content, might even be forgivable – they might not – but they might be explainable.

15. He says that at his home, X has her own room, and the children, who are X and his wife’s two children, have their own bathroom as well.  He says that he has only ever done anything for X’s benefit, and again I note that he absolutely denies the allegations of physical violence which have been laid against him by the mother in this case.

16. Ms Theoharopoulou, for the mother, says that the mother’s instructions are that the physical violence is true, although that can only have come from X, and therefore is somewhat second-hand, although she says that the mother was informed about what has been referred to in submissions as “the knife incident”, which is an allegation that the father’s wife pulled a knife on him, and it is said by Ms Theoharopoulou that the mother was informed of that incident by the father’s parents.  She wants X to live with her, and she wants X to have three hours of supervised time per week with her father.

17. The father tells me from the bar table that he works on Saturday mornings, which is when the mother proposes that those three hours occur, and that it is impracticable for him to spend time with her at that time. 

18. The mother says that X is very distressed at the thought of seeing her father, and that she is very stressed at the moment, having changed her entire life, including having changed schools.  She was not being sent to school at first, but she is now being sent to school, although it seems to be a bit anomalous to me that she would have been able to be enrolled in school without her father’s consent.

19. But, nevertheless, I am told that the mother has been sending her to school, and she is very concerned about X being manipulated by the father.

20. She is also concerned about violence in the father’s home, and Ms Theoharopoulou says that the mother is likely to be guided by the recommendations of a section 11F counsellor. Mr Bult for the Independent Children's Lawyer thinks that X should go back to her father. He says that has been her home for more than six years, she was inappropriately taken, and I have to agree with that.

21. What happened was that X was sent off by her father to her school camp, and she was taken from her school camp, with her knowledge but not with her father’s knowledge, by the mother, well, I think it was actually the maternal grandmother who picked her up from her school camp so that she wouldn't be returned to the father at the school. 

22. I agree that that was a totally inappropriate way to deal with any issues that the mother might have had in relation to X.  The proper way of going about that would have been to make an application to the court in urgent circumstances, if that was what she thought was necessary, to vary or suspend the orders made on 27 October 2010.

23. She did not do that.  In fact, she did not do anything until she was served with the application of Mr Norwood in these proceedings seeking a recovery order. 

24. Mr Bult says that the Department of Health and Human Services has not intervened at this point, and that is true, although, the section 67Z report talks about 14 separate notifications to the department about this not yet 12 year old child, which gives the Court great cause for concern. I note that most of those – not all, but most – of those reports were about the mother’s capacity to take care of the child, although there was at least one report about there being family violence in the father’s home.

25. This is an interim hearing.  I am not able to make findings of fact in an interim hearing.  I can only make findings of fact when all the evidence has been tested, and that means when parties have been in the witness box and have been cross-examined, and then I can decide, on the balance of probabilities, whether a fact or an incident is likely to have taken place or not.  I cannot do that today.  All I can do is look at the evidence as it is and make a decision according to law.

26. Now, when we come to the law, the law is set out in the Family Law Act, of course, and section 60CA of the Family Law Act says that, when I am making a parenting order, I must take the child’s best interests as my paramount consideration.

27. Then the Act sets out, in section 60CC, 16 separate issues that I need to take into account when I am looking at what is in the child’s best interest, and the first two of those are called primary considerations, and they are, first, the benefit to a child of having a meaningful relationship with both that child’s parents.

28. It would seem that, until earlier this year, X had been having a meaningful relationship with both of her parents, but, since she has been with her mother, she has been prevented from having a meaningful relationship with her father.  I am concerned that, when X has been with her father, she has spent time with her mother, but, when X is with her mother, she has not spent time with her father.  That concerns me because it says something about parental attitudes which I think are not particularly good for X.

29. The second of the primary considerations is the need to protect a child from harm, from physical, psychological or emotional harm, from being neglected, abused or exposed to family violence. Specifically, the Act sets out that it is of major importance that a child not be exposed to family violence. 

30. There are allegations, in this case, that this child has been exposed to family violence, and I certainly take that into consideration.  Then the Act says, when I am balancing those two things, the meaningfulness or the benefit to a child of having a meaningful relationship with both parents and the need to protect a child from harm, I must take the need to protect a child from harm as being more important than the benefit to a child of a meaningful relationship.

31. The harm that the child is alleged to be subjected to in this situation is the family violence which is alleged to have been perpetrated upon her and upon her step-mother by her father, and also by her step-mother against her father.  As I said, I have no corroboration of those allegations and I think there are ways in which the Court can ameliorate the risk which the child is certainly exposed to if those allegations are true. 

32. Then the Act sets out another 14 matters.  I am not going to go through every one of them today, but I am going to talk about the ones that I think are most relevant.

33. The first is the child’s wishes, and we do not know what X’s wishes are; we only know what her mother says her wishes are. It is very important that a child’s voice be heard in proceedings which are about her, and it is agreed between the parties and with the Independent Children’s Lawyer, that the matter will go to a section 11F conference with a family counsellor employed by the Court who will interview both parents, their respective partners perhaps and certainly X, and will make recommendations to the Court as to the further conduct of the matter.

34. The other things that I think are relevant are the relationship between X and her parents.  Each parent says that X has a close relationship with them and is critical of the other parent’s relationship with X.  Again, I have no corroborative evidence.  I can make no findings of fact about that save to note it. 

35. I need to look at the possibility or the impact on a child of being separated from a parent or a grandparent or anyone else the child is living with and it cannot help but have had some impact on X to be separated from her paternal grandparents, who have been very much a part of life in the last six years. 

36. She is also separated from her step-siblings for the last two months, since her mother’s mother took her from the school camp.  If I were to order that she return to Mr Norwood, she would be separated from her mother, although there are orders in effect and in force, indeed, which provide for X to have quite liberal time with her mother.  She also would be separated from Mr A, Ms Norwood’s partner, and from the half sibling who will be born in (omitted). 

37. I need to take into account issues of people’s maturity and could I say, that neither parent in this case on the evidence before me so far, impresses as a particularly mature person although the father has taken care of this little girl for six and a-half years without, it would seem on the evidence so far before me, any incident apart from some reports to DHHS, which they have not followed up on.  So there has been no actual intervention, it would seem, in the family.  So I can say that at least X has had at the very least, her basic needs met and it would seem, until early this year, she was very happy. Indeed some of the material provided by the Department says that there was a time when X was absolutely determined that she was not going to see her mother and it must be a terrible thing for a child to be asked questions like that, and to have to make decisions like that. 

1. She will not have to make that decision in this Court;  I will make that decision.  The parties are unable to come to agreement and they have left the decision to me, and I will make it.  That is what I get paid for. 

2. Some of the other things that I need to take into account are parental capacity to take care of the child’s emotional, psychological and intellectual needs, and can I say that taking a child away from her father without her father’s knowledge, when nobody was notified about this, displays a lack of capacity to consider this child’s emotional needs.

3. There is no Intervention Order which names X as an affected person and in those circumstances, the capacity of the mother to actually understand X’s intellectual and psychological and emotional needs is somewhat lacking.  She has less than optimum insight into the effect that it would have had on X to take her away from the home that she has known for the last six and a-half years. 

4. However, if what Ms Norwood says is true, and Mr Norwood has been violent and emotionally and psychologically abusive of X and of his wife, then his parental capacity must be in question.

5. This is, as I said, an interim hearing.  I cannot make findings of fact.  I also need to take into account specifically family violence and its impact on children and whether there is an Intervention Order in place, and I note again, there are allegations of family violence.  There is no Intervention Order in place which names X as an affected person or as an affected family member, although I am told that the mother did apply for such an order, but it was not granted. 

6. I need to take into account the circumstances under which family violence orders were made or not made in this situation, and I do take that into account.

7. I need to decide what is in X’s best interests on the balance of probabilities.  I do not have to decide what is in her best interests beyond a reasonable doubt.  She has been living with her father for six and a half years.  There has been little actual evidence before the Court of any problem in that time.  She has been to school when living with her father.  She has been involved with community organisations, such as (hobby omitted).  She has friends and neighbours and a community in which she lives and she has had a significant relationship with her paternal grandparents.

8. There is clearly a very large amount of conflict between the mother and the father in this case.  That cannot be in X’s best interest.  When a child grows up with that kind of conflict they learn that that is the normal way relationships are.  That being in a relationship means that you yell at each other, that you do not like each other, that you do things to harm each other;  that is what relationships are when children grow up like that, and if people want their children to go into their own relationships knowing – believing that that is what they are about, then that is what will happen.

9. In making the decision I am about to make, I take into account that X has been living in a community and with school friends and at a school where she has been her whole school life.  I take into account the actions of the mother in removing her from that situation without notice to the father, and without, it would seem, due regard to X’s psychological situation, particularly as X was seeing a psychologist. It would seem that she has not been seeing her recently and it would seem to be an appropriate parental action to contact the psychologist and make sure that X saw her so that X’s needs were being properly taken care of. I am told from the bar table that the psychologist and X have decided whether X will get to see her again.  That is not a decision that should be made by an eleven year old child. 

10. When I take all of those things into account I am going to order that X return to live with her father.  However, I am going to place some very strict conditions on that.

11. First of all, I am going to make an order that a recovery order issue - that the mother deliver the child to the father at his parent’s home by 7pm this day.

12. I will make it by 8 pm today.  I think it is important that she go back today.  I am going to make an order that the recovery order lie on the Court file pending confirmation that the mother has complied with order 2 and if no confirmation is received by 4 pm on 3 May then the recovery order shall issue. The orders of 27 October 2010 remain in full force and effect. 

13. Then I am going to put some restraints on the father, and these are legal restraints. And if you breach them there will be consequences.  I am going to make an order restraining the parties or either of them from denigrating the other or any member of the other’s family in the presence or hearing of the child, and from allowing her to remain in the presence or hearing of any third party engaging in such conduct.  I am going to make an order restraining the parties from discussing these proceedings with the child, save to explain these orders to her, also within her presence or hearing and allowing any third party to engage in that conduct.

14. I am going to make an order that until further order, the father be restrained from having a blood alcohol level of .05 or greater while the child is in his care and I am going to make a specific order that the father be restrained from exposing the child to any form of family violence.  That includes arguments, whether they be violent or not.  I am going to make an order that the father ensure that his wife, Ms L, files an affidavit in response to the allegations made by the mother within 14 days. 

15. Let me just have a look at the orders, and then I am going to make, as part of those orders, the particular orders will be as per order 7 of the independent children’s lawyer’s proposal. That is the injunctions, and the denigration injunction and the discussion injunction will be as per orders A, B, yes, and C, and then I will make a further order that the father be restrained from having a blood alcohol level of .05 or greater, that he be restrained from exposing the child to any form of family violence, that he ensures that his wife files an affidavit and the mother be restrained from exposing X or the child to any inappropriate adult behaviour.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 16 June 2017