PERREIRA & CHANDRA

[2015] FamCA 463

FAMILY COURT OF AUSTRALIA

PERREIRA & CHANDRA [2015] FamCA 463

FAMILY LAW – PRACTICE & PROCEDURE – RECOVERY ORDER – where a warrant previously issued in respect of the mother – where the mother had left the Commonwealth of Australia – where the children remain in Australia in the care of an unknown individual – where, following the issue of the warrant, the eldest child was removed from his school – where a recovery order is issued – further interim parenting order made.

APPLICANT: Mr Perreira

RESPONDENT: Ms Chandra

INDEPENDENT CHILDREN’S LAWYER: C.M. Bint Family Lawyers

FILE NUMBER: BRC 10610 of 2011

DATE DELIVERED: 17 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 17 June 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Palomo, Harris Sushames Solicitors

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Bint, C M Bint Family Lawyers

Orders

IT IS ORDERED THAT

1. Clause 5 of the Order made by Registrar Coutts on 16 February 2015 is discharged.

2. Clauses 4 and 5 of the Order made by the Honourable Justice Hogan on 5 May2015 is discharged.

3. The Order made by Judge Howard on 5 June 2014 is discharged.

4. The Order made by Acting Principal Registrar Spink on 21 August 2014 is discharged.

5. Any other clause contained within any other Order made restraining the provision of information including the address of the mother and children and all names and addresses of all persons and business / professional entities which may indicate the locality of the mother and children to the father is discharged.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The children, B, a male born … 2009, D, a female born … 2010 and C, a female born … 2010 (“the children”) live with the father.

2. The children spend no time with the mother.

3. The father do all things necessary to retun the child, B, to H School and ensure that the child continues to attend there unless otherwise agreed by the parties in writing.

4. The parties have liberty to apply on the giving of 48 hours notice in writing to the other party.

5. The Independent Children’s Lawyer has liberty to apply to have the matter re-listed before the Honourable Justice Hogan on the giving of five (5) hours notice to the parties in writing.

6. The father shall ensure the children attend at an appointment with Ms G, at a time and date to be advised by the Independent Children’s Lawyer, for the purpose of enabling Ms G to prepare an updated Family Report, with such report to cover those issues considered relevant by the Independent Children’s Lawyer.

7. The father be restrained and an injunction issue restraining him from approaching the H School or J Street, Suburb K in the State of Queensland:

   a.until the children are living with him as a result of the execution of the Recovery Order made today;  or

   b.unless in the presence of any officer executing the Recovery Order made today.

AND IT IS FURTHER ORDERED

1. Pursuant to s 65DA(2) and s 62B, 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION

A.The father will notify the Independent Children’s Lawyer when the children are placed into his care.

B.Any application filed by the mother for interim parenting orders be listed before the Honourable Justice Hogan.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perreira & Chandra 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 BRISBANE

FILE NUMBER: BRC 10610 of 2011

Mr Perreira

Applicant

And

Ms Chandra

Respondent

And

The Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. I intend to make a recovery order and an interim parenting order that the children live with the father.  I do so for the following reasons and against the following background.

2. The proceedings initially came before me as a consequence of two applications filed by the father:  an Application for Contravention filed on 16 February 2015 in relation to the mother’s alleged failure to facilitate supervised time between him and the children (pursuant to orders) and an Application in Case filed 20 February 2015, by which he sought procedural orders and the enforcement of orders previously made.

3. When the matter came before me in May 2015, the mother failed to appear.  This occurred despite her previous appearance at various court events that predated the May 2015 appearance and her engagement in the preparation of a Family Report and a psychiatric assessment prepared by Dr F. 

4. As a consequence of the mother’s failure to appear on 15 May 2015, I issued a warrant for her arrest.  Further orders were also made on that day in relation to the children’s time with the father:  namely, that it occur on a supervised basis at Relationships Australia at Suburb E - such an order was, in a sense, consistent with parenting orders that had previously been made.

5. The reality in this case is that, despite their parents separating towards the end of 2012, the children have not seen their father or spent time with him (save for their engagement in the interviews undertaken to prepare the Family Report, dated 14 April 2014) other than on one occasion in mid-June 2014.  This has occurred despite the existence of orders which have required that the children spend supervised time with their father. 

6. On 15 May 2015, the orders I made provided the opportunity to the Independent Children’s Lawyer to relist the matter or to apply to relist the matter on the giving of no less than five hours notice in writing to each of the parties.  Additionally, consistent with the obligation cast upon her by that order, the Independent Children’s Lawyer forthwith provided the mother with a copy of the order made that day.  So, much is clearly established by reference to the email sent by the Independent Children’s Lawyer to the mother on 5 May 2015. 

7. The father and the Independent Children’s Lawyer appear today as a consequence of the Independent Children’s Lawyer’s application to relist the matter.  Reference to a transcript of the interchange will establish that the evidence before the court establishes that the mother left the Commonwealth of Australia on 8 January 2015.

8. The children, however, remain resident in this country.  It seems more likely than not that they remain in the care of their maternal uncle who, it seems, may have travelled to Australia either at the end of 2014 or at some time in early 2015 for the purpose of undertaking tertiary study in this country.  It appears more likely than not (from the evidence before the court at this point) that, when the mother left Australia on 8 January 2015, she left the parties’ three children in her brother’s care.  Thus, the children, B, born in 2009, and the twins, C and D, born in 2010 appear to have remained in the care of their uncle and, perhaps (albeit unknown) others who may or may not have assisted him in providing care for them.

9. The evidence tendered by the Independent Children’s Lawyer today also establishes that on 6 May 2015 – that is, the day after the Independent Children’s Lawyer provided the mother with a copy of the order made by me on 5 May 2015 – B was removed from the H School, at which he had previously attended.  The evidence also suggests that he has not returned to that school since that time. 

10. Documents tendered by the Independent Children’s Lawyer, produced by subpoena issued to Education Queensland, reveal that there have been two email communications between the mother and the school in relation to B and his non-attendance.

11. It is, I think, clear from the contents of the email – or at least one of them – that the mother certainly portrayed to the H School and, thus, Education Queensland that she remained the parent caring for the children - certainly B - in Australia.  The contents of her email clearly, I think, suggest that she is present, that she is the person looking after him and that she is the parent asking the school to provide information and teaching materials, as it were, to her:  by implication, so that he can continue to be educated despite the fact that he has not been physically attending at the H School. 

12. The contents of the email amount to, I think, an act of significant deception on the part of the mother.  Further concerns about the mother’s credit and veracity arise after reference to other documents tendered by the Independent Children’s Lawyer today.  In particular, and by way of example, reference to information recorded in documents produced by the Department of Immigration at the time the mother left Australia clearly contain information from her asserting that she had no idea of the father’s whereabouts.  The document is dated two days after she and the father were engaged in a domestic violence hearing in a Magistrates Court in this state.

13. Even on an interim basis, that assertion – that she had no idea of his whereabouts – must be regarded with significant scepticism.   Its only consistent interpretation (given the fact that the parties were engaged in a court in this state two days earlier) could be to interpret it that, at the very time the document was signed and/or affirmed, the mother was not then immediately aware of the father’s whereabouts. 

14. Additional concerns about the mother’s veracity and credit arise when regard is had to the contents of paragraph 11.1 of the Family Report prepared by Ms G, dated 14 April 2014.

15. Further, there is, at least on a prima facie basis, additional concern given the contents of the father’s affidavit and his explanations in relation to the issue of the allegation of inappropriate and threatening communications alleged to have been sent by him to the mother.  In essence, his evidence is to the effect that investigations he has undertaken (or has had undertaken) have suggested that the mother, herself, may well have been responsible for causing the sending of emails, which have purported to have been authored by the father to her. 

16. All of these matters are relevant, even on an interim determination, because the mother’s material before the court raises significant allegations of domestic violence and threatening behaviour alleged to have been perpetrated by the father toward her.

17. It is clear from a perusal of her affidavit and the accounting of it and her account of asserted events to both Ms G and Dr F (during the course of their interviews for the preparation of their respective reports) that the mother asserts that the children would be at a significant risk of harm if they were to spend unsupervised time in the care of the father. 

18. Given the benefit of orders, which prevented the father from coming into contact with her – namely, the existing protection order – and orders which restricted the provision of information about her whereabouts and the whereabouts of the children and/or their attendance at educational and other activities made by the court, the mother’s actions in leaving Australia without the children themselves casts a pall over her veracity and the strength with which she purports to hold concerns that the children will be at risk if they were to spend even supervised time with the father.

19. The reality for these children at their tender ages is that they have not been afforded the opportunity to spend time with their father for a significant period.  This absence might, in another case, give rise to concern about the making of a recovery order on an ex parte basis, the result of which will be to remove the children from their current care arrangements and place them into the care of the father. 

20. I have certainly given thought to the impact upon the children and their functioning of such an order being put into effect.  However, the decision made by their mother - their primary care provider - to leave them in the care of someone who is likely to have been relatively unknown to them at the time of her departure from this country in January 2015 is suggestive of her assessment of them as resilient and capable of functioning appropriately in her absence.

21. This fact, together with the observations contained in the Family Report and the contents of the report prepared by Dr F, persuades me, in the circumstances that are currently before the court, that the children’s best interests will, in fact, be met by an interim order which will see them live with the father. 

22. I had given serious consideration to requiring the father - with the benefit of information contained in material produced pursuant to subpoena which may well identify the address at which the children are likely to continue to live – to put whoever may be caring for the children on notice and afford that person an opportunity to be heard before a recovery order or interim parenting order was made.

23. However, my assessment of the mother’s actions in attempting to ensure that the children are not afforded any opportunity at all - including that which would have occurred had there been compliance with orders for supervised time - to spend time with the father suggests to me that there is every likelihood that, if such opportunity were afforded to the person presently caring for the children, there is a significant risk the children may be moved;  or that that person, perhaps acting on the direction of the mother, would take steps to ensure that the children are removed from their current address. 

24. It is for this reason that I have determined that a recovery order is the order which is in the children’s best interests and it is also for this reason that I have determined that it is appropriate and proper and in the children’s best interests that the father’s oral application for a recovery order proceed on an ex parte basis.

25. It is, I think, open to me to conclude, even on an interim basis, that the mother’s attitude towards the children having an opportunity to spend time with the father is such that it is more likely than not that steps to ensure this would not take place would occur if, via indirect means, she was given notice of the existence of an order which would provide for the children (not only to spend time with the father) to live with him on an interim basis. 

26. I am persuaded, taking into account the relevant s60CC factors, that the children’s best interests are met by an interim order which sees them live with their father. 

27. Their relationship with him can be ascertained from a perusal of the contents of the Family Report, albeit that that document is, of course, somewhat dated now (it having arisen from interviews which took place in April 2014). 

28. The fact for the children of the absence of an opportunity to continue to develop their relationships with their father is, I think, clearly as a consequence of the mother’s actions in refusing to comply with the terms of orders for supervised time.  Regard need only be had to, in particular, paragraphs 12.8 and 12.9 of Ms G’s report.

29. It would not be in the children’s best interests if their father were to take actions (now that he is aware of the school at which B previously attended - namely, H School - and that he is likely to become aware of an address at which it may well be that the children continue to live) to approach that house or that school prior to the execution of the recovery order by the appropriate authorities.  Such actions, whilst understandable in the context where the children have not been afforded an opportunity to spend time with him and have, in fact, been left by their mother in the care of an unknown person since January 2015, may well only exacerbate concerns for the children.

30. With that in mind, I consider it appropriate and in the children’s best interests that the father be restrained from approaching H School or the address at which the children may be likely to continue to live, until they are placed into his care as a consequence of the execution of the recovery order. 

31. It is, I think, also appropriate and in the children’s best interests – or at least certainly in B’s best interests – that an order be made in the terms sought by the Independent Children’s Lawyer:  namely, that once the children are in his care, the father return B to the H School and do all things necessary to ensure his continued attendance there until further order or until agreed between the parties in writing.

32. At this stage, I do not intend to make an order that the children spend time with the mother.  I intend to make an order that the children spend no time with the mother until further order.

33. The reason for such an order is my concern about the risk to the children of being further removed – in the same way a decision to remove B from his attendance in formal education the day after a warrant issued for the mother’s arrest was made.  It seems to me that, if the mother returns to Australia and seeks to spend time with the children, she will be at liberty to file an application seeking orders to that effect. 

34. To facilitate that, I will also make an order giving the parties liberty to apply upon the giving of 48 hours notice in writing.

35. I will make a further order affording to the Independent Children’s Lawyer liberty to apply to the Court to have the matter relisted before me on the giving of no less than five hours notice in writing to each of the parties.  I make such an order in the event that there are matters of greater urgency about which the Independent Children’s Lawyer becomes aware.

36. Additionally, an order will be made requiring the father, once the children are in his care and living with him, to attend and present the children to attend at an appointment with Ms G at a time and date to be advised by the Independent Children’s Lawyer for the purpose of enabling Ms G to prepare an updated Family Report, with such report to cover those issues considered by the Independent Children’s Lawyer to be relevant in the particular circumstances of this case and the circumstances in which such interview is likely to occur

37. It is unnecessary at this stage to have Ms G undertake a further full Family Report, given the purpose for which her interview, assessment and observation is intended.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 17 June 2015.

Associate:     

Date:    17 June 2015