Pritchard and South

[2017] FamCA 448

FAMILY COURT OF AUSTRALIA

PRITCHARD & SOUTH [2017] FamCA 448

FAMILY LAW – Recovery order sought by the mother – Where final parenting orders were previously made for the children to live with the mother and spend no time with the father – Order made ex parte

Family Law Act 1975 (Cth)

APPLICANT: Ms Pritchard

RESPONDENT: Mr South

FILE NUMBER: BRC 9848 of 2013

DATE DELIVERED: 23 June 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 June 2017

REPRESENTATION

APPLICANT: In person

RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. A Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

2. Such persons are authorised and directed to find and recover the child, B born … 2003 and for that purpose, with such assistance as they require, 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 children may be found.

3. Upon recovery, the child is to be delivered to the care of his Mother, Ms Pritchard born … 1985 or to such other address as agreed to between the person executing the Recovery Order and the Mother.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. The Respondent Father Mr South born … 1978 himself or by his servants and or agents is and they are hereby restrained from removing or attempting to remove or causing or permitting the child B born … 2003 from the Mother’s care following his return to her care upon execution of the recovery order made today and from any school at which the child attends.

2. The Respondent Father Mr South born … 1978 is hereby restrained and an injunction issue restraining him from approaching within 50 metres of the Mother’s residence at Y Street, Suburb Z in the State of Queensland.

3. The Respondent Father Mr South born … 1978 is hearby restrained and an injunction issue restraining him from approaching within 50 metres of AA School at BB Street, G Town in the state of Queensland.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pritchard & South 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 9848 of 2013

Ms Pritchard

Applicant

And

Mr South

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The recovery order sought by the applicant in the Application in a Case filed today is sought pursuant to s 67U of the Family Law Act 1975 (Cth).  That section provides that, in proceedings for a recovery order, the Court may, subject to s 67V of the Act, make such recovery order as it thinks proper.  Section 67V of the Act provides that, in deciding whether to make a recovery order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.  Reference, therefore, must be made to the familiar and well-known provisions:  sections 60CB to 60CG of the Act, and in particular, of course, to s 60CC.

2. I am satisfied in this matter that the making of a recovery order is something which is in B’s best interests. 

3. It is clear from the material before me that the parties were previously involved in proceedings for final parenting orders earlier this year.  On 10 February 2017, Carew J made final orders which, in summary, provided that the mother have sole parental responsibility for B and C; that those children live with her and spend no time with the father.  Her Honour did so for the reasons she expressed in the Reasons for Judgment delivered also on 10 February 2017.

4. Included within those Reasons are her Honour’s findings of fact.  Included within those findings of fact (and ultimate conclusions) is her Honour’s conclusion that the children would be at an unacceptable risk of harm if they were permitted to spend unsupervised time with their father. 

5. This application proceeds because, on 30 May 2017 – at a time when the mother thought B was at school – she received a telephone call from him during which he told her he was with his father in J Town, which is located about 270 kilometres from her home. 

6. The mother’s affidavit sets out that B told her he had partly ridden there on his pushbike and had hitchhiked to the DD Town Police Station from where he called his father.  To the best of her knowledge, she was told by police that that was not necessarily the case – although, of course, her knowledge is only upon the basis of what she was told by the police officer to whom she spoke. 

7. It is clear that, despite the terms of the order made by Carew J earlier this year, the father has made no attempt to return the child to the mother’s care.  That, perhaps, is not at all inconsistent with the manner in which her Honour found him to approach the proceedings in the Court and the mother’s parenting application as determined by her Honour earlier this year.

8. In broad summary, it seems to me, from a reference to her Honour’s Reasons for Judgment, that there are significant risks (as her Honour found) to B if he remains in the care of his father.  Her Honour would not have arrived at the conclusions that she did, nor made the orders that she did following the trial, had she not reached such conclusion. 

9. It is clear, therefore, that B’s best interests will be met by him returning to the care of his mother – particularly in circumstances where, as I have said, his father has made no attempt to comply with the Order and she has already attempted to have B returned to her care by travelling to, and attending at, the K Town School (on 12 June) – the school into which the father had, it seems, already enrolled B.

10. It is also relevant, in my view, to record that, in correspondence which has passed between the parents (and which may be found at annexure “AP5” to the mother’s affidavit filed by leave today), the father himself proposes – although in the context of B living primarily with him – that B spend time with his mother and her household: including for half of school holiday periods during the holidays at the end of Terms 1 to 3 and for a two week block of time during the Christmas school holidays.

11. It seems that his only proposition is that B not be left alone with Mr Pritchard at any point.  Save for that, it does not seem, even on the father’s proposal (made after B has been in his care contrary to the terms of orders made by Carew J earlier this year) that B not spend any time in his mother’s care.  That is, in my view, something relevant to note in the context of disposing of the current application.

12. In my view, on the basis of the findings expressed by Carew J, there is an unacceptable risk to B of exposure to the father’s beliefs system and to a repetition of the matters her Honour discussed: for example, at paragraphs 63 of her Reasons for Judgment, where she recorded her finding that the father had engaged in behaviour by which it appeared he was coaching B to make allegations against Mr Pritchard (that is: asking leading questions of him and having B confirm what he had suggested).

13. In addition, following the findings expressed by Carew J at paragraph 8 of her Honour’s Reasons for Judgment, it seems to me that there is likely to remain, now, a significant risk of a deterioration in the relationship between B and C if urgent action is not taken to return B to his mother’s care.  Particular regard should be had to the contents of paragraph 98 of her Honour’s Reasons for Judgment.

14. Further, paragraph 116 of the Reasons contains her Honour’s acceptance of:

    a)the evidence at the trial before her earlier this year to the effect that exposure of the children to the father’s beliefs and attitudes will be emotionally and psychologically harmful to them;  and

    b)the evidence upon which she assessed the risk and arrived at her expressed conclusion that there is an unacceptable risk of emotional and psychological harm to the children if they are to spend any time with their father.

15. Also, I note, in particular, the contents of paragraph 133 of her Honour’s Reasons for Judgment, wherein she expresses her finding of her non-acceptance of the father’s proposition that he has never exposed the children to his beliefs, and her finding that he has demonstrated a propensity to disregard the laws of the land. 

16. Such matters are also, of course, relevant to the determination which I have earlier reached to proceed to hear this application without notice to the father, in order to minimise the prospect of ongoing harm to B.

17. For those very short reasons expressed orally, I am well satisfied that it is in B’s best interests that a recovery order issue.  I make such order. 

18. I accept that, in doing so, it is highly likely that this is something which is contrary to B’s expressed wishes:  a matter her Honour also dealt with in the Reasons for Judgment she delivered earlier this year.  Despite this and taking this into account, my view remains that a recovery order is still the order which is in B’s best interests at this point in time, given the findings expressed by Carew J after the trial earlier this year. 

19. Consequently, as I say, for those very short reasons I make an order in the terms outlined.

20. I direct that a copy of the transcript of today’s proceedings be obtained and placed on the file.  I note that the Reasons for Judgment that I have delivered orally in relation to the application will be provided to the parties once they are settled by me.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 June 2017.

Associate:

Date:              23 June 2017