Pieters & Westmore (No 4)
[2023] FedCFamC2F 1209
•8 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pieters & Westmore (No 4) [2023] FedCFamC2F 1209
File number(s): DGC 2398 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 8 September 2023 Catchwords: FAMILY LAW – recovery order – recovery order for the purpose of the child absconding – child had absconded – cautious about assisting Child Protection – assist father enforce recent orders – police involvement – mother excused from being in court – department appearing amicus curiae – child to live with the father – a copy of orders be made available to the mother – outstanding applications dismissed – issue of contempt – urgent hearing – transcript ordered Legislation Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 8 September 2023 Place: Melbourne Solicitor for the Applicant: Pentana Stanton Lawyers The Respondent: No Appearance Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
DGC 2398 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PIETERS
Applicant
AND: MS WESTMORE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The rules of the court be dispensed with to permit the Father's affidavit filed 6 September 2023 to be treated as an application and as an affidavit.
2.Leave is granted to the Department of Families, Fairness and Housing to appear amicus curiae.
3.Pursuant to Section 67Q of the Family Law Act 1975 a Second Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all 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 born in 2013 ("X") and to deliver the child to the applicant Father at such place as the Father and the person effecting such recovery agree to be appropriate; and
(b)this second recovery order lie in the registry and to be issued in urgent circumstances and upon short notice if necessary upon advise to the court that X has absconded.
4.A copy of these orders and the reasons (when available) made this day be available to the Mother
5.All outstanding applications are otherwise dismissed.
6.A transcript of the oral evidence of the Father given this day be made and retained on the court file and be provided to the parties and their legal representatives.
7.The Father, the Independent Children's Lawyer and the Department of Families, Fairness and Housing have liberty to contact the chambers of Judge O'Shannessy via email ([email protected]) or such other Judge available via email.
AND THE COURTS NOTES THAT
A.The Mother, Ms Westmore, requested and was excused attendance this day.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
These are the reasons in the matter of Pieters & Westmore. The matter of Pieters & Westmore comes before me on Friday, 8 September 2023. These are the third reasons delivered, the first two anonymised as Pieters & Westmore (No 2) [2023] FedCFamC2F 701 and Pieters & Westmore (No 3) [2023] FedCFamC2F 1028. The substantive reasons in the matter of Pieters & Westmore were delivered on 15 August 2023 and those orders required the child, the subject of these proceedings, X, born in 2013 (“X”), to be delivered to the Father’s (“the Father”) care at a McDonald’s changeover point. That McDonald’s had been the changeover point for non-school changeovers for the child X when she was living with her father but spending significant and substantial time with her Mother (“the Mother”).
As set out in the substantive reasons, X’s living arrangements were interrupted when she was not returned from school holiday time by her Mother in the middle of 2022. The Father promptly took proceedings to recover X and I refer to and repeat the procedural history set out in the substantive reasons.
There was substantially significant trouble in having X move from her Mother’s care to her Father’s care on 16 August 2023. I will not repeat all of the events of that time but, eventually, after significant difficulty for local police, SOCIT and Child Protection, X came to be in her Father’s care and was attending school. Mr Pieters alleges that on the first day that he had X attend her usual school, X was approached in the school yard by persons who have yet to be identified.
On the second day that X was attending school, Mr Pieters alleges that the Mother attended X’s school. Order 5 of the orders made 15 August 2023 reads;
5.After complying with the above order to deliver [X] to the Father’s care, the Mother not spend any time or communicate with [X] until Friday 20 October 2023.
On Friday, 1 September 2023, it is common ground that X’s mother attended the school, spoke to X and, effectively, removed her from the care of Ms FF, the Father’s partner, who was taking her home from school that day.
The mother took X to a local police station where, yet again, X was interviewed. The issue of systems abuse for X, given the number of professionals, police officers, child protection officers that she has had to speak with over her life, looms large in this case.
The Father promptly issued further proceedings and the matter came before me on Tuesday, 5 September 2023. By this time, with the assistance, and the voluntary assistance of Child Protection, X was living in City S with a person who Child Protection was satisfied was not an inappropriate person to be caring for X in the crisis that she was in.
It appears that, at every turn, when speaking to police or Child Protection, X stated, again, that she was in fear of her Father and did not wish to live with him. The fear of her Father and not wishing to live with him had been a theme, as set out in the substantive reasons, from time to time over many years in X’s life. Subsequently to such expressions, X was later observed by experts to have a close affectionate and appropriate relationship with her Father.
On the return of the matter on 5 September 2023, issued as a matter of urgency the previous day, a recover order was sought as well as the request that X’s mother be dealt with for contempt of court. The Court was assisted by counsel for Child Protection appearing amicus curiae. Hence, on Tuesday, 5 September, the Court had before it counsel for the mother, counsel for the Father, counsel for the Independent Children’s Lawyer (“the ICL”) and counsel for Child Protection. When the matter was called on at 10.00am, at the request of all parties, the matter was stood down for negotiations. I am grateful to Child Protection for seeing fit to assist X, the parties and the Court by attending and being involved in the long and difficult negotiations on that day, Tuesday, 5 September. The orders that were made by consent on 5 September 2023 and, with key parts emphasised in the organised minute, read as follows.
1.The Father be at liberty to provide a copy of these Orders dated 5 September 2023 and His Honours Judgment dated 15 August 2023 (upon request) to the following
(a)police including all units and departments, including but not limited to SOCIT;
(b)the Department of Families Fairness and Housing;
(c)any school the child [X] born [in] 2013 (“[X]”) attends;
(d)any therapist and or their nominee, and
(e)any other Allied Health Professional that [X] may need to attend upon.
2.The Father and the Mother be at liberty to provide a copy of the following documents for the purposes of any Family Violence Intervention Order proceedings in any Magistrates Court in the State of Victoria;
(a)Consent Orders dated 5 September 2023;
(b)[Mr Pieters] Affidavit dated 4 September 2023;
(c)[Ms FF] Affidavit dated 4 September 2023;
(d)[Ms Westmore] (AKA [Ms OO]) Affidavit dated 4 September 2023; and
(e)a copy of the judgment of His Honour Judge O’Shannessy dated 15 August 2023 and copy of the final orders made by the court on 15 August 2023.
3.Pursuant to section 68P of the Family Law Act 1975 in the event of any inconsistency between these Commonwealth Orders and State Magistrate Court Orders the Commonwealth Orders shall prevail.
4.Within 30 days the Mother shall pay the Father’s Costs thrown away in the agreed amount of $4,500.00 to be paid into the Trust Account of Pentana Stanton Lawyers.
5.Within 30 days the Mother shall pay the Independent Children’s Lawyer’s scale costs in the amount of $3,977.23.
6.Order 5 of the Final Orders dated 15 August 2023 be discharged and in lieu thereof, the Mother and or her servants and agents be and are hereby restrained by injunction until 5 January 2024 (“the moratorium period”) from the following;
(a)spending any time or communicating in person or via any electronic means or any other form of contact whatsoever with [X];
(b)attending any school or any place where the child may be present or within 500 meters of any place where the child may be present;
(c)covertly and or by any other means providing the child with any mobile or electronic device.
7.Order 6 of the 15 August 2023 Orders be varied as follows;
(a)the Father engage [X] with [Ms M] psychologist and/or such other psychologist nominated by [Ms M] (“the Therapist”) to assist with the transition of [X] back into the Father’s care and the cost of [X]’s treatment be shared equally between the parents as follows:
(b)the Father provide the Mother within 24hours of receipt, a paid receipt via electronic means for the cost of [X]’s treatment by [Ms M] and/or her nominee; and
(c)the Mother shall reimburse the Father half of the balance owing, after any Medicare or private health (if applicable) rebate within 48 hours, to his nominated bank account.
8.Order 9 of the Orders dated 15 August 2023 be varied as follows:
(a)the Mother and/or her servants and agents be and are hereby restrained by injunction from spending time with [X] other than in accordance with these orders and/or facilitating or allowing any other person on the Mother’s behalf to spend time with [X] other than in accordance with these orders AND in the event [X] comes to be in the care of any person other than in accordance with these orders, the Mother do all acts and things to forthwith notify the Father of the whereabouts of herself and of [X] AND cause and ensure [X] is returned to her Father’s care immediately and for the avoidance of doubt this Order wholly prohibits the Mother and or her servants and agents from spending time with [X] pursuant to Order 5 (the moratorium period).
9.For the avoidance of doubt Order 19(c) and (d) of the 15 August 2023 orders prevent the Mother from engaging and or involving herself in those activities until the conclusion of the moratorium period.
10.Order 11 of the Final Orders dated 15 August 2023 Orders be varied as follows: That Commencing 5 January 2024, [X] spend time with the Mother as follows.
11.Order 11(c)(i) of the Final Orders dated 15 August 2023 be varied as follows:
(a)during school term, and not before 5 January 2024, in the event that; the Mother has suitable secure accommodation, rented or purchased, for herself and [X], within a radius of 30 kilometres from [H] School (‘the accommodation’) and keeps the Father advised of the particulars of the accommodation; and
12.Order 23 of the Final Orders dated 15 August 2023 orders be varied as follows: The Independent Children’s lawyer be discharged on 6 January 2024.
13.The Mother be restrained by injunction from taking the child to any allied health practitioner for any purposes including but not limited to any examination unless with the Father’s prior written consent, or to a hospital in case of a medical emergency upon which she will notify the Father immediately and he will take over [X]’s treatment.
14.There be a Recovery Order as follows:
(a)pursuant to Section 67Q of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force.
(i) to find and recover the child [X] born [in] 2013 and to deliver the child to the applicant Father at such place as the Father and the person effecting such recovery agree to be appropriate; and
(ii)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.
(b)this Recovery Order lie in the Registry to be issued upon the Father’s solicitor filing and serving an affidavit swearing to noncompliance by the Mother.
15.The Application in a proceeding filed 4 September 2023 be otherwise dismissed.
I did not deliver further reasons on Tuesday, 5 September 2023 when making these orders, but I did announce that I was satisfied that those orders agreed to by all parties, including Child Protection, though appearing only amicus curiae, were in X’s best interest.
For present purposes, the order number 14, that is the recovery order, must be referred to. It is clear that that recovery order and the provision at 14(b), that is the order lying in the registry, was contemplating the possibility of non-compliance with those orders by the mother and limited to that circumstance.
On the following Thursday, that is 7 September 2023, by the hard work of the Child Protection officers, it had been determined that Child Protection officers would assist X by organising her transference to her Father’s care. This was arranged initially to be at the City TT Police Station and then, after that did not occur, to be at the City S Police Station.
The evidence before me today satisfies me that when X was told that she was to be returned to the care of her Father, that she ran away or absconded. This has also been described as her care with the volunteer in City S as “breaking down”. I am satisfied that, thereafter, Child Protection experienced some circumspection or difficulty in obtaining the assistance of local police in enforcing or assisting Child Protection act consistently with, rather than enforcing, the orders of 15 August 2023 and 5 September 2023.
I might add that, at all points, Child Protection has kept an open investigation and at no point has determined that it is appropriate to issue any proceedings or take any action contrary to the orders of 15 August 2023 or of 5 September 2023.
Despite the difficulties that the long suffering Child Protection worker experienced in negotiating with police officers to undertake the most difficult task, at about, it appears, late on the evening of Thursday, 7 September 2023, X was delivered to the Father’s care and the Father and his partner, Ms FF, took X home to where he lives some hours journey from City S, and X remains there in his care. Hence, as at this point, X has returned to the Father’s care.
The mother sought to be excused from attending this day and I excused her from further attendance, however, she has had every opportunity to participate and be aware of these proceedings, but has chosen not to participate.
Nonetheless, I will have these orders I make today and these reasons made available to her lawyers so that they can make them available to her. The Father’s solicitor, the ICL, who appeared himself this morning, and counsel for Child Protection, who, again, appeared amicus curiae, pressed that there be another recovery order made so that the Father, effectively, could keep this in his pocket or chest of drawers to be utilised and rolled out if X was to abscond again.
The practical dynamic is that X is 10 years old and articulate. Unsurprisingly, when a child attends a police station or a Child Protection office complaining of fear, assault or worse what the child says is taken seriously
The inevitable result, then, is that this creates real difficulty for the Father. The process of the police making preliminary investigations, contacting Child Protection, Child Protection making further investigations, the existing store of information and file being consulted, Child Protection determining whether or not they should be further involved, and the police determining the extent to which they would assist, causes significant delay. In the meantime X may be simply at large. There is, shared by all parties, a real concern for the safety and care of X were she to be at large.
The issue of X being able to settle down in the care of her Father following the long interruption to her care was one which was addressed by expert evidence and by the parties and by my reasons of 15 August 2023. That is, it was always expected that there would be real personal difficulty for X when she returned to the care of her Father and that that would not be an easy process.
X’s expressed views were not to live with her Father and not to spend any time with him. For the reasons set out in the substantive reasons, I placed very little weight on the expression of those views. I determined in the substantive reasons that X had been unfortunately caught up in what is described as a resist/refuse dynamic, and as recommended by the expert evidence in the case ultimately, little weight (but much attention) was placed on that. I also determined that there was no risk to X of assault or otherwise in the care of her Father.
In all of those circumstances the ICL and the Father ask that I make the following orders:
1.That a Recovery Order be issued for [X] (“X”) born [in] 2013 and currently ten (10) years of age (“the child”) pursuant to Section 67Q of the Family Law Act.
2.That [X] is recovered and delivered to the Father at such place as the Father and the person effecting such recovery agree to be appropriate.
3.That the Marshall, all officers of the Australian Federal Police and all Officers of the Police Forces of all States and Territories of the Commonwealth of Australia be authorised and directed with such assistance as they require and if necessary, by force to:
(a)Stop and search any vehicle, vessel or aircraft and search premises or places for the purpose of finding the child.
(b)Recover the child.
(c)Deliver the child to the Father.
(d)Arrest, without warrant, the Mother in the event that the Mother again removes or takes possession of the child.
(e)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or places in which there is at any time reasonable cause to believe that the child may be found.
To some extent the crisis has, for the moment, been resolved, because X is, as I deliver these reasons, back in her father’s care. The reality is that there is a fear, and in my view a legitimate fear, that X may again abscond.
In that circumstance, the proposed orders are sought. I have pointed out to the Father’s solicitor that the usual practice of the issuing of a recovery order is that it is provided to the federal police who undertake the appropriate search and location of the child, usually with the assistance of the local state police, and, with careful and sensitive liaising with the lawful carer, deliver the child to that carer.
Ultimately what was pressed before me was that there should be another recovery order issued to lie in the registry to be able to be issued upon short notice were X to abscond again. As a general rule, courts do not deal with theoretical controversies. It deals with an actual controversy.
I am satisfied in this case that there is a real risk that X will again abscond. It is not in X’s best interests that time, whether hours or days or weeks, pass whilst the various necessary legal bodies involved ascertain that X should again be returned to her Father’s care. Notwithstanding there is not, as at this morning, a risk to X’s care, there is a risk to her welfare, given the tumultuous circumstances that she has been through not only over the last few days but over the period of her life from the middle of 2022, and indeed earlier if she were to again abscond.
X’s life has been relatively tumultuous from soon after she was born when her mother was imprisoned for the first time during her life. From the period of late 2019 until final consent orders made in April of 2021 and then continuing until the middle of 2022, X’s life was relatively ordered and calm. She attended school and was a promising and well-liked student. She moved freely between the households of her mother and her Father and lived with her Father pursuant to Court orders. However, in all of those circumstances I remain concerned that X will again abscond until she is able to settle in her Father’s care.
It was never contemplated that settling in her Father’s care would be easy, and the distress to X of being placed back with her Father was a matter that weighed heavily on me at the time of making the substantive orders.
I am satisfied in all of the circumstances that I should not issue a recovery order on the basis that Mr Pieters, X’s Father, can effectively pull it out of the top drawer or his pocket and take it to the police station. However, I am satisfied that it is appropriate to issue a second recovery order and this recovery order to also lie in the registry and to be issued urgently and upon short notice and, if necessary, after hours, upon advice to the court, that X has again absconded.
It is hoped that the further recovery order would assist the police in any determination they would have to make in urgent and difficult circumstances.
These reasons and orders should not in any way be seen to be critical of any police officer for acting cautiously in the difficult circumstances that X’s life thrusts upon them.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 8 September 2023
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