Ortona and Peters

[2014] FamCA 1187

FAMILY COURT OF AUSTRALIA

ORTONA & PETERS [2014] FamCA 1187

FAMILY LAW – CHILDREN – Application made by father for urgent recovery of children – recovery order made.

Family Law Act 1975 (Cth) ss 62B, 65DA, 67U, 68Q

APPLICANT: Mr Ortona

RESPONDENT: Ms Peters

INDEPENDENT CHILDREN’S LAWYER: Ms C Smith

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 30 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 30 December 2014

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

SOLICITOR APPEARING AS ADVOCATE FOR THE INDEPENDENT
CHILDREN’S LAWYER: Ms Smith

Orders

1. Pursuant to s 68Q of the Family Law Act 1975, IT IS DECLARED THAT these orders are inconsistent with an interim intervention order made on 24 December 2014, case number C1272932, and that to the extent of the inconsistency, the family violence order is invalid.

2. Pursuant to s 67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the children B born … 2003 and C born … 2005 (“the children”) and to deliver the said children to the father forthwith, he being the person entitled to residence of the said children pursuant to orders made in the Federal Circuit Court on 23 August 2013 and 3 October 2012.

3. For the purpose of recovery of the children, the father follow the reasonable directions of the Federal Agents or officers of Victoria Police who execute the Recovery Order, including making himself available at their request at any location which is convenient to them to take possession of the children and deliver the children to him.

4. The father is to arrange service of a sealed copy of these orders upon the mother as soon as is practicable by email to address …

5. As soon as practicable, the Court will arrange service of these orders upon the Australian Federal Police, the Principal Registrar of the Melbourne Magistrates’ Court and the Commissioner of Victoria Police.

6. The Recovery Order remain in force for a period of 12 months or until the children are returned to the father in accordance with these orders.

7. The children remain living with the father until Friday 30 January 2015 whereupon the week about arrangement provided for in accordance with order 8 of the orders of 23 August 2013 made in the Federal Circuit Court will resume.  That order, unless otherwise ordered by the Court, provides that:

   “The children [B] BORN … 2003 and [C] BORN … 2005 (“the children”) live with the Father from Friday after school until after school the following Friday commencing 23 August 2013 and each alternate week thereafter.”

8. The mother, her servants or agents be restrained from removing or causing the removal of the children from the care of the father contrary to this order.

9. The costs of the Independent Children’s Lawyer for the appearance in this application in the sum of $534.00 be reserved.

10. I reserve liberty to the mother to apply generally on short notice and specifically to seek orders to spend time or communicate with the children prior to the resumption of the week about arrangement for care of the children.

11. The father’s evidence this day be transcribed.

12. The email dated Monday 29 December 2014 from the mother and addressed to officers of this Court and the Independent Children’s Lawyer be marked “Exhibit ICL1” and remain on the Court file.

13. Any party wishing to apply to reopen his or her case to adduce further evidence, file and serve any such application by no later than 27 January 2015 and any application so filed be allocated a hearing before me as soon as practicable. 

14. The father’s Application in a Case filed 29 December 2014 be otherwise dismissed.

15. Pursuant to s.65DA(2) and s.62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ortona & Peters 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 MELBOURNE

FILE NUMBER: MLC 8590 of 2012

Mr Ortona

Applicant

And

Ms Peters

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The father has made an Application in a Case supported by an affidavit sworn 29 December 2014 for a recovery order for two children of the relationship. The application is brought under s 67U of the Family Law Act (Cth) (“the Act”). The children are B, aged 11 years, born … 2003, and C, aged nine years, born … 2005.

2. The father’s application is supported by the Independent Children’s Lawyer, who has proposed that the children be returned to the father, and I am satisfied on the basis of the father’s affidavit, which was sworn 30 December 2014,  that the mother has been served and provided with the information about the hearing today.  The mother was served by email with the father’s application on 29 December 2014.  I am satisfied on the evidence of the father before me today and on the submissions from the Independent Children’s Lawyer that the mother has communicated with a Registrar of this Court about the hearing today. 

3. The mother’s solicitors filed a notice of ceasing to act on 26 November 2014.

4. The mother has informed a Registrar of this Court by email that she was aware of the hearing today but that she is not in Melbourne and cannot attend.  She has apparently informed the Independent Children’s Lawyer at one point that she is in rural Victoria in emergency housing, but that she does not have a car and she has access to the train.  The mother has not communicated directly via telephone with the Independent Children’s Lawyer.

5. My court officer has telephoned the mother’s mobile phone during the hearing and there is a recorded voicemail message.  A message was left on the mother’s mobile telephone to telephone the Court to participate in the hearing.  The mother did not return the call throughout the morning. 

6. The mother has unilaterally removed the children from Melbourne to an unknown location after obtaining an interim intervention order from the Melbourne Magistrates’ Court on 24 December 2014, without notice to the father.  This interim intervention order was obtained by the mother in circumstances where a judgment in a trial was reserved in this Court and no applications have been made by the mother to this Court to suspend or vary any existing orders in the best interests of the children. 

7. Pursuant to orders made in the Federal Circuit Court and an agreement between the parties, the children were to be collected by the father from the XX Police Station on Christmas Day at 12.00 pm.   The mother failed to attend with the children at the police station for changeover and the father was informed by police that the mother had made an ex parte application to vary an intervention order with respect to the two children and her, returnable at the Melbourne Magistrates’ Court on 14 January 2015 at 9.30 am. 

8. The background to this application was a nine-day trial conducted in August 2014 in which the judgment is reserved and this proceeding concerns the two children of the relationship, which was a relationship of about 12 years, and competing applications for final parenting and final property orders.  The proceeding was transferred to this Court from the Federal Circuit Court, where interim orders were made for the children.  The child B is 11 years of age and has been diagnosed with an emotional and social disorder.  The child C is aged nine years.  The children attend the same school and have been living with each parent on a week about arrangement since the interim orders were made. 

9. The focus of the trial was directed to whether the children should principally live with the father, because the mother will not facilitate a meaningful relationship between the father and the children, or live with the mother, because the children need to be protected from the father because of family violence.  The mother proposed that the existing arrangement continue with some supervision from the Court.  The Independent Children’s Lawyer, supported by the father, proposed that the children live with the father and spend alternate weekends with the mother and half the school holidays, in addition to special days with the mother. 

10. The applicant father is aged 42 years and is employed as a technician.  The respondent mother is aged 44 years and has previously been employed as a salesperson, but is currently unemployed.  The mother has previously been diagnosed with post-traumatic stress disorder.  The parties first met and began a relationship in 2000, commencing cohabitation in September 2002 and separating on a final basis on 30 August 2012, after an altercation where police attended and removed the mother from the house.  The father remains living in the parties’ former home.  The mother lives in rental accommodation. 

11. Following the release of a s 11F report in the Federal Circuit Court on 24 July 2013, interim parenting orders were made by consent before Judge O’Dwyer for the children to live with the mother and spend time with the father.  On 23 August 2013, Judge O’Dwyer made interim orders for the children to spend week about time with each parent, amongst other orders. 

12. For the purposes of the trial, a family report dated 2 June 2014 was prepared by Ms E, the family consultant, who met and interviewed both parents, the father’s partner Ms K and the children.  Ms E did not indicate with which parent the children should primarily live, as under the circumstances according to her, “it is difficult to be definitive about which parent is better suited to meet the children’s needs.” 

13. The family consultant stated that:

    If the Court finds that the future risk to the children in the care of the parent is manageable, then the following is recommended:

    ·Parental responsibility be shared.

    ·The children reside principally with one parent.

    ·The children spend time with their non-resident parent from Friday through to Monday each alternate weekend with the changeover occurring at school.

    ·Term school holidays to be shared.

    ·The parents complete a Post Orders Parenting Program. 

14. At the trial, the family consultant was cross-examined by the father, counsel for the mother and counsel for the Independent Children’s Lawyer.  The mother was represented by a lawyer throughout the trial.  Ms E warned about taking the children’s views, regarding where they wish to live, at face value.  Counsel for the Independent Children’s Lawyer outlined a proposal to the family consultant whereby the children live with the father and spend weekend time with the mother and where the parents could undertake a parenting order program, and queried whether this would be a “manageable risk”.  It was the evidence of Ms E that this would be a manageable risk. 

15. The effect of the family consultant’s evidence was that the children were not in danger if they should reside with either parent, depending on what the findings of the court might be in respect of any family violence that was alleged by the mother.  However, it was at all times the mother’s case that the children were not in danger if they were in the care of the father. 

16. Dr H, a psychiatrist, assessed the father on 13 November 2013 and the mother on the following day.  He did not see the children.  He had been provided with the reports of Dr L, clinical psychologist, the family consultant’s report of 12 July 2013 and the psychological report of Ms Y, who assessed B as not presenting with an autism spectrum disorder but rather marked anxiety.  At the time of the assessment by Dr H, there was a disagreement between the parties about the diagnosis for B, and this was subsequently resolved at the outset of the trial.  Both parties agreed that B suffers from an emotional and social disorder. 

17. Importantly, Dr H diagnosed the father as having no psychiatric condition, but was in remission from an adjustment disorder with depressed and anxious mood.  It was his opinion that there were no psychiatric grounds which would compromise his ability to care for the children.  Dr H diagnosed the mother as suffering from childhood neglect and emotional deprivation, vulnerable personality with dependent anxious features, alcohol abuse and post-natal depression or dysthymia.  He noted that the mother had required extensive psychological and psychiatric treatment and that the medication levels for her treatment for depression had been increased in the post-separation period.  He stated that this was:

    a surprising development if it is [Mr Ortona] who has caused her illness.  In fact, she once again appears to be struggling to manage and has not worked since the separation, consistent with the trajectory of her pre-existing vulnerabilities and psychiatric condition rather than the alleged abuse during the marriage.

18. It was Dr H’s conclusion that the mother’s fear of losing the children “is more than likely related to the allegations and her alienating of the children from the father.”  He also concluded that there were strong indications of the mother alienating the children from their father.  In cross-examination by counsel for the Independent Children’s Lawyer, he stated that his diagnosis of the mother meant that, in terms of her parenting capacity, the mother presented a risk to the children.  Counsel for the Independent Children’s Lawyer then described the evidence in the family consultant’s s 11F report about the children being rejecting of the father and stating that they fear him but then running to him, and asked Dr H about the impact upon the children if the mother is contributing to the children believing things which may or may not be their real experience. 

19. Dr H’s evidence was as follows:

    It’s disturbing for children to be told what they experience with a particular parent is not true.  So that disturbs them in the sense that they – it’s confusing.  It’s worrying in the sense that when one parent for their own reasons does what you say could be happening, children get caught in this terrible loyalty battle, where, on the one hand, they need to align themselves with one view, at the same time experiencing other.  So they end up living split-off lives.

    …

    And if the alignment and the need is so great, often children sacrifice themselves in regard to the relationship with, if you like, the good or the other parent, and that’s a very sad but also quite damaging experience for them.  So – and in my view, they need to be protected from that. 

20. Dr H stated that the mother may interpret things which were, in fact, innocent in a more threatening way.  He thought that the mother needed to be under the care of a psychiatrist and that treatment would involve proper assessment, psychotropic medication and therapeutic treatment.  However, he thought that the mother’s variable insight would affect the efficacy of any treatment.  He also referred to the contradiction in the mother’s case that the children were safe with the father, despite the fact that he had allegedly chronically abused her, causing significant injuries, during the relationship.  It was difficult to reconcile, but typical of the pattern of contradiction exhibited by the mother.  Dr H certainly had concerns about the mother at the time that he gave evidence, including about her attitude towards the children.  

21. The mother conceded in cross-examination during the trial that her principal concern in relation to family violence was the relationship between the parents.  She stated that she was not concerned about the father harming the children when he spent time with them in her absence.  She agreed that the volatility was there during the relationship and was between the parents rather than involving the children.  This was her explanation for not opposing the father spending substantial time with the children.  During the course of the trial, the mother also made some concessions about the serious allegations that she had made of family violence against the father.

22. Today I am satisfied that the mother has failed to make any application to this Court in respect of any of the current orders that are in place in relation to the children but, instead, she has made an application in the Melbourne Magistrates’ Court without notice to the father, whereby she complains about evidence that she claims was given by the father during the course of the trial in this Court. 

23. The only material before me as to the reasons or grounds for the application that the mother made in the Melbourne Magistrates’ Court on 24 December 2014 is in annexure JO1 to the father’s affidavit in support of his Application in a Case.  The reasons quoted by the mother in her application to the Melbourne Magistrates Court were:

    DURING RECENT FAMILY COURT TRIAL, [MR ORTONA] ADMITTED TO DOMESTIC VIOLENCE, [MS K] ADMITTED TO SEEING [THE FATHER] VERBALLY ABUSE CHILDREN WHILST IN HIS CARE, AND HAVING (sic) [MR OTONA] PERMISSION TO ACCESS MY EMAIL ACCOUNTS, PRINT THEM ETC.  [MR ORTONA] – VIA FAMILY COURT PSYCHIATRIST ADMITTED TO PHYSICALLY ASSAULTING ME AND MY SON.

24. That was the basis on which she sought to vary an intervention order in the Magistrates’ Court, which is returnable on 14 January 2015.  I note that it is of some concern that the mother has not made any application to this Court since that trial in August and made no application until 24 December 2014, when she made an application to the Melbourne Magistrates’ Court without notice to the father. 

25. In these circumstances, having regard to the evidence of the family consultant and also Dr H in particular, I am satisfied that it is in the best interests of the children to make the orders that have been proposed by the Independent Children’s Lawyer this day, supported by the father, for the children to be placed in the care of the father until 30 January 2015 and I am satisfied, having regard to all of those criteria set out in the Act, that it is proper and in the best interests of the children to make the orders that have been sought.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 30 December 2014.

Associate:

Date: 12 January 2015